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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 17-CF-1376

TRAVONN DAVIS, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(2017-CF3-006133)

(Hon. Ronna L. Beck, Trial Judge)

(Argued January 18, 2022 Decided December 21, 2023)

Paul R. Maneri, Public Defender Service, with whom Samia Fam, Jaclyn 

Frankfurt, Public Defender Service, and Dennis Martin, Public Defender Service at 

the time, were on the brief, for appellant.

Ethan L. Carroll, Assistant United States Attorney, with whom Michael R. 

Sherwin, Acting United States Attorney at the time, and Elizabeth Trosman, Suzanne 

Grealy Curt, and Brittany Keil, Assistant United States Attorneys, were on the brief, 

for appellee. 

Before EASTERLY and DEAHL, Associate Judges, and THOMPSON,

* Senior 

Judge.

 * Senior Judge Thompson was an Associate Judge of the court at the time of 

argument. On October 4, 2021, she was appointed as a Senior Judge but continued 
2 

Opinion for the court by Associate Judge Easterly.

Dissenting Opinion by Senior Judge Thompson at page 46. 

EASTERLY, Associate Judge: Travonn Davis challenges the denial of his 

motion to suppress inculpating data from the GPS monitor he was required to wear 

by the Court Services and Offender Supervision Agency (“CSOSA”) while he was 

on supervised release for a prior offense. Mr. Davis’s motion to suppress was 

litigated in the trial court before this court issued its decision in United States v. 

Jackson, 214 A.3d 464 (D.C. 2019). In Jackson, this court recognized that 

(1) requiring an individual to be subject to GPS monitoring is a search under the

Fourth Amendment, id. at 472, and (2) such a search of an individual on probation 

may be upheld as constitutional under the special needs doctrine, which allows 

reasonable regulations to substitute for the warrant and probable cause requirements 

of the Fourth Amendment where special needs exist, id. at 472-81 (citing Griffin v. 

Wisconsin, 483 U.S. 868 (1987)). But neither Jackson nor this court’s subsequent 

decision in Atchison v. United States, 257 A.3d 524 (D.C. 2021) (extending the 

special needs rationale employed in Jackson to evaluate GPS monitoring of 

probationers to supervised releasees) considered if CSOSA’s regulation authorizing 

electronic monitoring is lawful under the D.C. Code and therefore could be 

to serve as an Associate Judge until February 17, 2022. See D.C. Code §§ 11-1502, 

1504(b)(3). On February 18, 2022, she began her service as a Senior Judge. 

See D.C. Code § 11-1504.
3

considered a “reasonable” basis for these searches under a special needs analysis. In 

their briefs to this court, the parties address this issue: Mr. Davis asserts that 

CSOSA’s imposition of a GPS monitor on Mr. Davis could not be upheld as a special

needs search under Jackson, inter alia, because the regulation underlying this 

practice falls outside the agency’s statutory authority; the government argues, inter 

alia, that CSOSA’s regulation is lawful and thus a reasonable foundation for a special

needs search. 

Critically, CSOSA is not the only federal agency with statutory authority over

D.C. supervised releasees. The United States Parole Commission has primary 

authority, and CSOSA carries out its responsibilities vis-à-vis supervised releasees 

“on behalf of” the Parole Commission, not as an independent actor. D.C. Code 

§ 24-133(c)(1). Mirroring the system governing federal releasees, the United States 

Parole Commission has the same adjudicatory powers federal trial courts have to set 

or modify the conditions of release or revoke release—powers that include the 

authorization of warrantless searches—while CSOSA has the same powers that 

federal probation officers have to track compliance with these conditions of release.

See D.C. Code § 24-133(c)(2) & (d). Although a different statutory provision gives 

the Director of CSOSA authority to “[d]evelop and operate intermediate 

sanctions . . . for sentenced offenders,” D.C. Code § 24-133(b)(2)(F), based on the 

legislative history of the term “intermediate sanctions” and our understanding that 
4

the Parole Commission’s authority vis-à-vis supervised releasees tracks that of a 

federal district court, we do not understand that provision to give CSOSA the 

unilateral power to authorize searches—which the Supreme Court in recent years 

has held clearly encompasses GPS monitoring—of supervised releasees at its 

officers’ discretion.

Considering CSOSA’s bounded statutory authority, the procedural 

protections the Parole Commission otherwise affords against warrantless searches 

of people on supervised release, and our evolved understanding that electronic 

monitoring constitutes a search deserving of Fourth Amendment protection, we 

conclude that CSOSA’s regulation authorizing its officers to discretionarily and

unilaterally impose such monitoring, 28 C.F.R. § 810.3(b)(6), is unlawful to the 

extent it is applied to supervised releasees. Because the government can have no 

legitimate interest in the enforcement of an unlawful regulation, reliance on the 

regulation is perforce unreasonable under a special needs analysis. We therefore 

hold that Mr. Davis’s motion to suppress the GPS data gathered by CSOSA should 

have been granted and his guilty plea conditioned on the denial of that motion must 

be vacated.

I. Facts and Procedural Background

In 2012, Mr. Davis was sentenced and incarcerated for armed robbery, and in

2013, he began a five-year period of supervised release in connection with that 
5

incarceration. The conditions of his release, set by the Parole Commission, did not 

include GPS monitoring or searches of his person at CSOSA’s discretion, nor was 

Mr. Davis required to comply with a curfew or house arrest. Apart from being a day 

late to report for an office visit in May 2016, it appears Mr. Davis was fully 

compliant with the conditions of his supervised release until he was arrested and 

charged with misdemeanor assault on a police officer (“APO”) on June 29, 2016. 

Although no probable-cause finding in support of the arrest was made and no 

prosecution followed, his Community Supervision Officer (“CSO”) from CSOSA 

placed Mr. Davis on GPS monitoring two weeks later as a “sanction” following this 

arrest. Under CSOSA regulations, an officer may unilaterally order such monitoring 

for “a specified” period of time. See 28 C.F.R. § 810.3(a) (2023)1 (explaining a 

supervised releasee “will be in violation of the conditions of [their] supervision” and 

“administrative sanctions” may be imposed “if [their] CSO has reason to believe that 

[they] are failing to abide by the general or specific conditions of release or [they]

are engaging in criminal activity”); 28 C.F.R. § 810.3(b)(6) (listing “electronic 

monitoring for a specified amount of time” as an administrative sanction “available 

to the CSO”).

With the exception of a few weeks in August during which his GPS monitor 

was removed in relation to another arrest, Mr. Davis remained on GPS monitoring

 1 All subsequent references to the C.F.R. are to the 2023 version.
6

for the next three months until November 29, 2016, when his CSO discharged him

from GPS monitoring twelve days after his misdemeanor APO charge was

dismissed. 

During the periods when Mr. Davis was required to be on GPS monitoring, 

he was forbidden from removing the GPS tracking device, required to charge the 

device for an hour twice every day (once in the morning and once in the evening),

during which he had to remain awake and next to an electrical outlet, and prohibited 

from engaging in activities that would submerge the device in water (e.g., swimming 

or taking baths). Per CSOSA’s documentation and the facts stipulated by the parties, 

all of Mr. Davis’s movements during these periods were “monitored by CSOSA’s

(24/7) Monitoring Center” and “tracked and stored as an official record,” which 

would be “indefinitely maintain[ed]” and accessible without a warrant by CSOSA

and by the Metropolitan Police Department. 

Meanwhile, on November 19, 2016, two days after the misdemeanor APO 

charge was dismissed but ten days before Mr. Davis’s CSO discharged him from 

GPS monitoring, MPD responded to a report of an armed carjacking in southeast 

D.C. MPD subsequently searched the location records of all people on CSOSA GPS 

monitoring to identify those who were near the site at the time of the incident and 

thereby linked Mr. Davis to the time and place of the carjacking and to the area 

where MPD later recovered the car. Based on this connection, Mr. Davis was 
7

indicted on a number of related charges in April 2017.

Mr. Davis moved to suppress the GPS data, asserting that its collection 

violated his Fourth Amendment rights.2

 The government, which had the burden to 

defend the challenged warrantless search, see infra Part II.B., argued in response that 

(1) Mr. Davis had consented to the search (an argument it has since abandoned) and 

(2) the warrantless search of Mr. Davis was reasonable under a general totality-ofthe-circumstances analysis (the same argument it made in Superior Court to oppose 

suppression in United States v. Jackson, No. 2015-CF3-2512, in which a challenge 

was raised to warrantless CSOSA GPS monitoring in the context of probation and 

which led to this court’s decision in Jackson, 214 A.3d at 464). The government did 

not invoke the special needs doctrine. In fact, in its argument defending CSOSA’s 

sharing of the GPS monitoring data, see supra note 2, the government expressly 

disclaimed reliance on the special needs doctrine.

At the suppression hearing, the trial court sua sponte requested supplemental 

briefing from the parties on “the authority of CSOSA to require GPS monitoring.” 

The court explained that supervised release was different from probation, it had 

looked at the statutory framework, and it was aware that “the Parole Commission 

has the authority under our Code to exercise the authority of the [c]ourt” over 

 2 Mr. Davis also challenged CSOSA’s sharing of the GPS monitoring data 

with the police but he has not pursued that issue on appeal.
8

supervised releasees. But, the court observed, “CSOSA is the one here that . . . 

imposed the GPS monitoring.” Referencing the operative statutes, the court asked 

whether CSOSA “can . . . just do that?” and if the government’s position was that it 

could, whether that authority came from a statute or elsewhere. The court’s “focus” 

was “what entitles CSOSA to impose the GPS monitoring condition?” In its 

supplemental opposition, the government renewed its constitutional defense of

CSOSA’s installation of the GPS monitor, arguing the imposition of GPS monitoring 

passed a general reasonableness analysis under the Fourth Amendment based on the 

totality of the circumstances, citing inter alia United States v. Knights, 534 U.S. 112 

(2001), and Samson v. California, 547 U.S. 843 (2006). In response to the court’s 

question about CSOSA’s authority, the government acknowledged that the Parole 

Commission’s authority over supervised releasees under D.C. Code § 24-133(c)(2) 

encompassed GPS monitoring, and then argued that, even though the Parole 

Commission had not ordered GPS monitoring for Mr. Davis, CSOSA was 

authorized “to impose it as an ‘intermediate sanction’ to encourage compliance with 

release conditions.” As support for this assertion, the government cited this court’s 

decision in Hunt v. United States, 109 A.3d 620, 621 (D.C. 2014) and D.C. Code 

§ 24-133(b)(2)(F), as well as CSOSA’s own regulations regarding administrative 

sanctions, 28 C.F.R. § 810.3. In his reply to the government’s supplemental 

opposition, Mr. Davis countered that the Knights line of cases had no application;
9

although D.C. Code § 24-133 might give the Parole Commission authority to order

GPS monitoring of a supervised release, CSOSA did not have “independent 

authority” do so; and to the extent its regulations purported to authorize such a 

sanction, they exceeded “the nature of an administrative sanction itself.” 

The trial court orally denied the motion to suppress at a subsequent hearing, 

relying exclusively on the government’s totality-of-the-circumstances argument. 

The court concluded that, given the “diminished expectation of privacy” of people 

on supervised release and the government’s “substantial” interest in enforcing 

compliance and deterring new offenses, CSOSA’s actions were reasonable, such that

no violation of the Fourth Amendment had occurred. Mr. Davis consequently 

entered a conditional plea of guilty on the charges of armed robbery and unlawful 

possession of a firearm, on stipulated facts and subject to his appeal of the denial of 

his suppression motion. 

Mr. Davis timely appealed, and this court, on Mr. Davis’s request, stayed

briefing in his case for the resolution of the appeal in Jackson. Following the 

resolution of Jackson and this court’s determination that CSOSA’s warrantless GPS 

monitoring of a probationer could be upheld under the special needs doctrine, see

Jackson, 214 A.3d at 467, the parties filed their briefs and addressed Jackson’s 

special needs analysis. After the parties filed their briefs but before the case was 

argued, this court decided Atchison, in which we extended the application of 
10

Jackson’s special needs rationale to GPS monitoring of probationers to supervised 

releasees. 257 A.3d at 530.

II. Analysis

We focus on Mr. Davis’s argument that the trial court erred in denying his 

motion to suppress the GPS data, because CSOSA’s regulations permitting GPS 

monitoring exceeded the agency’s legal authority, and, without lawful regulations, 

the government’s GPS search cannot be deemed reasonable under the Fourth 

Amendment special needs doctrine. This presents a purely legal question, which we 

review de novo. See Lewis v. United States, 767 A.2d 219, 221 (D.C. 2001). We 

conclude the special needs test is not satisfied and decline the government’s 

invitation to look beyond that test to a totality-of-the-circumstances analysis under 

Knights and Samson.

A. The Fourth Amendment, GPS Monitoring, the Special Needs Doctrine, 

and the Limits of Our Prior Decisions

The Fourth Amendment protects “[t]he right of the people to be secure in their 

persons . . . against unreasonable searches and seizures . . . .” U.S. Const. amend. 

IV. In the last decade, the Supreme Court has issued several decisions making clear 

that the Fourth Amendment’s protections extend to individuals subject to location 

monitoring by GPS tracking devices. Because the installation of a location monitor 

on someone without their consent necessarily involves a physical trespass onto their 
11

person, the Supreme Court held that such an action is a “search” within the meaning 

of the Fourth Amendment. Grady v. North Carolina, 575 U.S. 306, 308-09 (2015). 

The Court also recognized that, beyond the initial physical intrusion of installation, 

GPS monitoring implicates critical privacy interests because it “generates a precise, 

comprehensive record of a person’s public movements that reflects a wealth of detail 

about [their] familial, political, professional, religious, and sexual associations.” 

Riley v. California, 573 U.S. 373, 396 (2014) (quoting United States v. Jones, 565 

U.S. 400, 415 (2012) (Sotomayor, J., concurring)). And the Court recognized that 

“individuals have a reasonable expectation of privacy in the whole of their physical 

movements,” demanding Fourth Amendment scrutiny of intrusions thereon. 

Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018); see also Jones, 565 U.S. 

at 413-18 (Sotomayor, J., concurring). 

In the context of criminal investigations, searches undertaken without a 

judicial warrant based on probable cause are generally considered unreasonable. 

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995). But there are several 

exceptions to this general probable cause requirement, including one for searches 

conducted to serve “special needs[] beyond the normal need for law 

enforcement . . . .” Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987) (internal 

quotations marks omitted). In Griffin, the Supreme Court held that the operation of 

a state probation system could be a “special need” because probationers as a class 
12

have reduced liberty interests and because probation restrictions aim to promote 

rehabilitation and prevent harm to the community. Id. at 874-75. But the Court in 

Griffin cautioned that, although a “special need” like probation “permit[s] a degree 

of impingement upon privacy that would not be constitutional if applied to the public 

at large[,] [t]hat permissible degree is not unlimited.” Id. at 875. 

The key in Griffin was that the search in question “was carried out pursuant 

to a regulation that itself satisfies the Fourth Amendment’s reasonableness 

requirement under well-established principles,” such that the regulation effectively 

stands in for the warrant typically required. Id. at 873. To assess the reasonableness 

of a search-authorizing regulation, the court weighs the governmental interest served 

by the regulation (and how effectively the regulation serves that interest) against the

intrusion on the liberty interests of the class of people subject to the regulation. See, 

e.g., Acton, 515 U.S. at 654-64 (balancing the nature of the privacy interest, the 

character of the intrusion on that interest, the governmental concern at issue, and the 

efficacy of the means in question of addressing that governmental concern); see also

Chandler v. Miller, 520 U.S. 305, 314 (1997) (explaining this is a “context-specific 

inquiry” in which the court “examin[es] closely the competing private and public 

interests advanced by the parties”). This test is now referred to as a “special needs” 

analysis. See, e.g., Jackson, 214 A.3d at 475.
13

In Jackson, the government successfully appealed a trial court order 

suppressing GPS tracking data collected by CSOSA and acquired by the MPD on 

the grounds that the police search of this data “infringed Mr. Jackson’s reasonable 

expectation of privacy.” Id. at 467. This court first rejected the argument that 

CSOSA could not impose GPS monitoring without a court-issued warrant and held

that “Griffin’s ‘special needs’ analysis applies to CSOSA’s installation of a GPS 

device” to monitor the movements of people on probation. Id. at 471, 475. This

court then concluded that, on the record before the court, Mr. Jackson had no 

reasonable expectation of privacy in the data CSOSA had collected that would 

preclude the agency from sharing this data with the police. Id. at 481-87. In 

Atchison, this court extended Jackson’s application of a special needs analysis to 

CSOSA’s monitoring of probationers via GPS to people on supervised release. 257 

A.3d at 530-31. But in both Jackson and Atchison this court assumed that a 

legitimately promulgated, valid regulation authorized CSOSA’s search. See 

Jackson, 214 A.3d at 475-77 (explaining the regulation without assessing its 

validity); Atchison, 257 A.3d at 530-31 (relying on Jackson). More particularly, 

neither of these two decisions discuss the statutory role of the Parole Commission 

vis-à-vis sanctioning supervised releasees or subjecting them to warrantless

searches. And while both Jackson and Atchison make passing reference to CSOSA’s 

statutory authority, in neither case does it appear that the parties raised the agency’s
14

search or sanction authority (or the limits thereof) to the court’s attention and trained 

the “judicial mind” upon it.3

 See District of Columbia v. Sierra Club, 670 A.2d 354, 

359-60 (D.C. 1996). 

To the extent the government (or the dissent, see Post at 68-71) seeks to 

suggest that this court has already resolved the legitimacy of CSOSA’s 

administrative sanctions regulations, we cannot agree. The government quotes 

Jackson, 214 A.3d at 476, quoting a portion of Hunt, 109 A.3d at 621, that described 

CSOSA’s regulations, and then asserts that this court in Jackson and Hunt

 

3 Because the legitimacy of CSOSA’s authority under a special needs rationale 

was unexplored, Jackson leaves unanswered how CSOSA’s regulation authorizing 

imposition of a GPS monitor on a probationer squares with D.C. Code § 16-710 

(requiring that “[a] probationer . . . be provided by the clerk of the court with a 

written statement of the terms and conditions of his probation at the time when he is 

placed thereon” and “shall observe the rules prescribed for his conduct by the court

and report to the probation officer as directed” (emphasis added)), D.C. Code 

§ 24-133(c)(1) (directing CSOSA to carry out its supervisory responsibilities “on 

behalf of the court or agency having jurisdiction over the offender being supervised” 

(emphasis added)), D.C. Code § 24-133(d) (granting CSOSA officers only “the same 

powers and authority as are granted by law to United States Probation and Pretrial 

Officers”), Fed. R. Crim. P. 32.1 (addressing revoking or modifying probation and 

for the latter requiring a hearing wherein the probationer has a right to counsel), or 

this court’s decision in Barnes v. United States, 513 A.2d 249, 251 (D.C. 1986)

(holding that because “an order adversely modifying the terms of probation affects 

the nature of the sanction imposed, it is immediately appealable as a ‘final order’”). 

Citing D.C. Code § 24-304(a) (giving courts the authority to modify the terms 

and conditions of probation), Jackson did indicate courts could override CSOSA’s 

decision to order GPS monitoring for a probationer. 214 A.3d at 479 & n. 49 (noting 

a probationer could seek judicial review of CSOSA’s decision); id. at 480 (same).
15

“recognized . . . the term ‘intermediate sanctions’ [referenced in D.C. Code § 24-

133(b)(2)(F)] plainly encompasses CSOSA’s graduated-sanctions program.” But 

for the reasons already discussed, we do not understand Jackson to have reached out 

to decide an issue that was not before the court in that case. Likewise, Hunt does 

not help the government. Analyzing the statute that makes it a crime to tamper with 

a detection device where the individual is required to wear it as a “condition of a 

protection order, pretrial, presentence, predisposition release, probation, supervised 

release, parole, or commitment or . . . while incarcerated,” D.C. Code 

§ 22-1211(a)(1)(A) (2012 Repl. & 2014 Supp.), Hunt held that a parolee could only 

be prosecuted for removing a GPS monitor imposed as a condition of release on 

parole by the Parole Commission or a court—not when the monitor had been

imposed by CSOSA. 109 A3d at 623. In so doing, Hunt acknowledged the existence 

of CSOSA’s regulation authorizing electronic monitoring as an administrative 

sanction, 109 A.3d at 622-24, but it did not endorse its legality for anyone, much 

less for supervised releasees under D.C. Code § 24-133, as that issue was never 

before the court.

Accordingly the legitimacy of CSOSA’s regulations authorizing GPS 

monitoring as an administrative sanction is an open question. 

B. Preservation

Before we can address this question, we must resolve our standard of review. 
16

The government argues we must review only for plain error Mr. Davis’s challenge 

to CSOSA’s authority to impose GPS monitoring as an administrative sanction 

because he did not challenge a special needs justification for the installment of his 

GPS device before the trial court. We disagree. After Mr. Davis raised a Fourth 

Amendment challenge to a search via GPS monitoring by CSOSA in Superior Court, 

the burden was on the government to establish its actions complied with the Fourth 

Amendment. Florida v. Royer, 460 U.S. 491, 500 (1983) (recognizing that “[i]t is 

the State’s burden to demonstrate” that a search or seizure falls under an exception 

to the warrant requirement); see also Bennett v. United States, 26 A.3d 745, 751 

(D.C. 2011) (“Where a defendant shows that a warrantless search or seizure 

produced evidence that the government seeks to introduce at trial . . . the burden is 

on the government to . . . justify[] the search based on facts that could bring it within 

certain recognized, limited exceptions to the warrant requirement” (internal 

quotation marks omitted)). The government did not make a special needs argument 

at this juncture and thus did not cite to CSOSA’s regulations to justify GPS

monitoring of Mr. Davis thereunder.

4

 See supra Part I. 

 4 Even so, the Superior Court actually raised the question of the scope of 

CSOSA’s authority, albeit outside the special needs framework the government had 

not invoked. See supra Part I. Thus it would be incorrect to say that the Superior 

Court was not “apprised” of a concern about CSOSA’s authority. See, e.g., Graves 

v. United States, 245 A.3d 963, 969 (D.C. 2021) (“[W]e have held that a claim is not 

forfeited where, despite defense counsel’s failure to object, the trial judge 
17

Ignoring the fact that it was the government’s burden to defend CSOSA’s 

search via GPS monitoring, the dissent makes a different argument in support of 

plain error review. The dissent asserts that “appellant never argued that CSOSA’s 

imposition of GPS monitoring was statutorily invalid.” Post at 71. But this takes 

Mr. Davis’s challenge to the lawfulness of CSOSA’s regulations out of critical 

context. Where the government failed to argue in the trial court that the GPS search 

was constitutionally valid pursuant to the special needs doctrine, Mr. Davis cannot 

be faulted for not having made the argument that a special needs justification for the 

GPS search failed because this search was not conducted pursuant to a lawful, 

reasonable regulation. A defendant does not have to anticipatorily challenge an 

argument that the government does not make in opposition to a suppression motion 

to forestall plain error review on appeal. To the contrary, a defendant could 

 

demonstrably was aware of the potential error and broached it sua sponte” because 

the “purpose of requiring a timely objection to the error, which is to alert the trial 

court and give it an opportunity to correct the error, has been met” (internal quotation 

marks omitted)); Lewis v. United States, 263 A.3d 1049, 1060 (D.C. 2021) (where 

trial court identified relevance as an issue, relevance challenge on appeal deemed 

preserved); Chatmon v. United States, 801 A.2d 92, 100 (D.C. 2002) (explaining 

“the purpose of the requirement of timely exceptions to trial errors is to alert the trial 

court and give it an opportunity to correct the error,” and deeming challenge to 

government’s rebuttal argument preserved where the trial court “broached sua 

sponte the subject of his discomfort with [this] argument”); see also Abdus-Price v. 

United States, 873 A.2d 326, 332 (D.C. 2005) (explaining that “parties on appeal 

‘are not limited to the precise arguments they made below’ in support of their 

claims, . . . and ‘even if a claim was not pressed below, it properly may be addressed 

on appeal so long as it was passed upon’” (internal citations omitted)).
18

ordinarily argue that the government had forfeited such an argument. See Robinson 

v. United States, 76 A.3d 329, 341 n.24 (D.C. 2013) (concluding that “the 

government forfeited its opportunity to defend its seizure and search of [the 

defendant] based on [a] new theory” not litigated in the trial court). 

Recognizing that pressing for forfeiture would present its own complications 

where this court adopted the special needs rationale for GPS searches during the 

pendency of this appeal, Mr. Davis has not sought to argue the government has 

forfeited reliance on a special needs framework. Given the unusual posture of the 

case, and the fact that this court directed the parties to address the post-trial doctrinal 

development in Jackson in their briefs, which both did amply, we decline to hold 

either party strictly to the issues raised at the suppression hearing. Cf. Parker v. 

United States, 254 A.3d 1138, 1144 (D.C. 2021) (recognizing that a development of 

the law may constitute an “exceptional circumstance” permitting this court to 

exercise its discretion and excuse any waiver of an issue at trial). We thus turn to 

the question presented.

C. Analyzing CSOSA’s Electronic Monitoring Regulation Under the 

Special Needs Test

To assess the reasonableness of CSOSA’s regulation that authorized the 

search of Mr. Davis, we first examine the origins and statutory structure of the 

District’s supervised release system. We next consider the agency’s regulation
19

regarding GPS monitoring in the context of Fourth Amendment doctrine. We 

conclude, based on these considerations, that CSOSA’s regulation authorizing 

warrantless searches of releasees via GPS monitoring exceeds its statutory authority. 

Because the government can have no legitimate interest in the implementation of an 

unlawful regulation, the regulation was necessarily unreasonable under a Fourth 

Amendment special needs framework, as was the search of Mr. Davis.

1. The Authorized Roles of the Parole Commission and CSOSA to 

Oversee Supervised Releasees

In 1997, Congress passed the National Capital Revitalization and SelfGovernment Improvement Act, which mandated that the District abolish its parole 

system and instead implement a system of determinate sentences and supervised 

release under the authority of the United States Parole Commission. Balanced 

Budget Act of 1997, Pub. L. No. 105-33, §§ 11231-33, 111 Stat. 712, 745-51. The 

Parole Commission, a federal agency then primarily tasked with overseeing a

dwindling number of federal parolees,

5 was assigned authority over all District

residents released from prison into a mandatory period of supervised release. Id. 

 5 See Peter B. Hoffman, History of the Federal Parole System 1-2, 14, United 

States Parole Commission (2003), https://www.justice.gov/sites/default/files/uspc/

legacy/2009/10/07/history.pdf; https://perma.cc/VH9R-Y7Y5.
20

§ 11233(c)(2).

6

 The Revitalization Act also established a new federal agency, 

CSOSA, to which the Act designated the “supervision . . . [of] offenders on 

probation, parole, and supervised release . . . on behalf of the court or agency having 

jurisdiction over the offender being supervised.” Id. § 11233(c)(1). In allocating 

these duties, the Act specified that the “United States Parole Commission shall have 

and exercise the same authority as is vested in the United States district courts” under 

18 U.S.C. § 3583(d)-(i) and that CSOSA officers “shall have and exercise the same 

powers and authority as are granted by law to United States Probation and Pretrial 

Officers.” Id. § 11233(c)(2), (d). Section 11233 of the Revitalization Act was 

codified as D.C. Code § 24-133. 

As in the Revitalization Act, section 24-133 in pertinent part directs that 

CSOSA carry out its supervisory responsibilities “on behalf of the . . . agency having 

jurisdiction over” the supervised releasee, D.C. Code § 24-133(c)(1), which the 

statute identifies as the Parole Commission, D.C. Code § 24-133(c)(2) (supervised 

releasees “shall be subject to the authority of the United States Parole Commission 

until completion of the term of supervised release”). And subsection (c)(2) again 

analogizes the Parole Commission to the federal district courts, stating that the 

Commission “shall have and exercise the same authority [over released offenders] 

 6 See D.C. Code § 24-403.01(b)(2) (requiring supervised release following 

sentences of more than one year).
21

as is vested in the United States district courts by paragraphs (d) through (i) of § 3583 

of title 18, United States Code . . . .” D.C. Code § 24-133(c)(2).

7

 These U.S. Code 

provisions in turn provide that the district courts are the only decision-makers in the 

federal system authorized to impose discretionary conditions of supervised release.

Specifically, 18 U.S.C. § 3583(d) mandates that “the [federal district] court shall” 

impose certain conditions of release and authorizes “[t]he court [to] order” other 

discretionary conditions as long as it concludes that certain criteria are met, 

including that the conditions “involve[] no greater deprivation of liberty than is 

reasonably necessary” to deter criminal conduct and protect the public. 18 U.S.C. 

§ 3583(d)(2). The federal district courts also have the sole authority to modify 

conditions of release, so long as they similarly weigh factors including the degree of 

deprivation of liberty that is reasonably necessary. See id. § 3583(e)(2) (providing 

that “[t]he court may . . . modify, reduce, or enlarge the conditions of supervised 

release” (emphasis added)).

The federal circuits have affirmed that the federal district courts possess 

exclusive authority to impose or modify terms or conditions of release and “may not 

 7

 The Sentencing Reform Amendment Act of 2000 (“SRAA”), D.C. Law 

13-302, 47 D.C. Reg. 7249, incorporated similar language in what is now in D.C. 

Code § 24-403.01(b)(6): “Offenders on supervised release shall be subject to the 

authority of the United States Parole Commission until completion of the term of 

supervised release. The Parole Commission shall have and exercise the same 

authority as is vested in the United States District Courts by 18 U.S.C. 

§ 3583(d)-(i).”
22

delegate to the Probation Department decisionmaking authority which would make 

a defendant’s liberty itself contingent on a probation officer’s exercise of discretion,”

meaning that “the extensive supervision mission of federal probation officers 

includes execut[ing] the sentence, but not imposing it.” United States v. Matta, 777 

F.3d 116, 122 (2d Cir. 2015) (internal citation and quotation marks omitted). See id.

(recognizing that a “district court may delegate to a probation officer 

decisionmaking authority over certain minor details of supervised release—for 

example, the selection of a therapy provider or treatment schedule,” but holding that 

the sentencing court may not delegate its sentencing authority to the United States 

Probation Department to determine whether a defendant should undergo inpatient or 

outpatient drug treatment as a special condition of supervised release); see also 

United States v. Esparza, 552 F.3d 1088, 1091 (9th Cir. 2009) (explaining “a 

probation officer may not decide the nature or extent of the punishment imposed 

upon a probationer,” and reserving to the trial court the “determination of whether a 

defendant must abide by a condition” that implicates a defendant’s liberty interests, 

such as the decision to order in-patient treatment (internal quotation marks omitted)); 

United States v. Heath, 419 F.3d 1312, 1315 (11th Cir. 2005) (holding the district 

court impermissibly “delegated to the probation officer not only the administrative 

supervision of [defendant]’s participation in the mental health program, but also the 

authority to make the ultimate decision of whether [defendant] had to participate at 
23

all”); United States v. Johnson, 48 F.3d 806, 808 (4th Cir. 1995) (explaining that 

“making decisions about the amount of restitution, the amount of installments, and 

their timing is a judicial function and therefore is non-delegable”).

8

 Thus, by 

statutory analogy under the Revitalization Act (as codified in D.C. Code§ 24-

133(c)(2)), in the District of Columbia the Parole Commission has the sole authority 

to impose or modify conditions of supervised release, and then only after considering 

the releasee’s liberty interests and the purposes served by the condition.

Concomitantly, as in the Revitalization Act, CSOSA’s authority under D.C. 

Code § 24-133 is markedly different from that of the Parole Commission. CSOSA 

is generally tasked with “provid[ing] supervision . . . for offenders on probation, 

parole, and supervised release” and “carry[ing] out its responsibilities on behalf of 

 8 The government observes that these decisions were rooted in Article III 

nondelegation principles and issued subsequent to Congress’s enactment in 1997 of 

D.C. Code § 24-133(c)(2) and its incorporation of the federal code. But the 

government supplies us with no reason to conclude that Congress, at the time it 

enacted D.C. Code § 24-133, was unaware of the nondelegation principles 

undergirding the federal courts’ authority. Indeed prior to 2000, courts had “been 

faced many times with the question of the proper amount of authority to be delegated 

a probation officer,” United States v. Kent, 209 F.3d 1073, 1078 (8th Cir. 2000), 

including in Johnson, which preceded the creation of CSOSA by several years, see 

Johnson, 48 F.3d at 809 (quoting Arnold v. United States, 271 F.2d 440, 441 (4th 

Cir. 1959) for the proposition that “duties imposed upon the Court cannot be 

discharged . . . by the probation officer”). It thus seems fair to assume both that 

Congress was familiar with nondelegation principles operating in the federal courts 

and that it chose to import similar nondelegation limits (albeit not constitutionally 

grounded) into D.C.’s supervised release scheme when it modeled the Parole 

Commission’s authority over D.C. supervised releasees on that of the federal courts’

over federal supervised releasees. 
24

the court or agency having jurisdiction over the offender being supervised.” D.C. 

Code § 24-133(c)(1). While the statute reiterates in subsection (c)(2) that CSOSA 

is responsible for supervising all people on supervised release in the District, the 

same subsection provides that all releasees are “subject to the authority of the United 

States Parole Commission.” D.C. Code § 24-133(c)(2). And mirroring the language 

in subsection (c)(2) analogizing the Parole Commission to the federal district courts, 

subsection (d) provides that CSOSA officers “shall have and exercise the same 

powers and authority as are granted by law to United States Probation and Pretrial 

Officers.” D.C. Code § 24-133(d). Federal probation and pretrial officers are 

assigned only administrative and supervisory duties over people on federal 

supervised release, such as informing releasees of their release conditions, staying 

informed about releasees’ compliance, and recording and reporting on that 

compliance to the court as appropriate. See 18 U.S.C. § 3603; see also Matta, 777 

F.3d at 122 (acknowledging federal probation officers’ “decisionmaking authority 

over certain minor details of supervised release” (emphasis added)). Federal 

probation officers do not have unilateral authority to alter the terms of a person’s 

release implicating their liberty interests, see supra; and if they wish those terms to 

be altered as a consequence for noncompliance with supervision or a violation of the 

court’s conditions of release, absent a waiver by the supervised individual, they must 

request any changes through a court hearing. 18 U.S.C. § 3583(e)(2); 
25

Fed. R. Crim. P. 32.1(c).

In other words, in the federal system there is a clear delineation between the 

adjudicatory authority, given to the federal district courts, and the administrative and 

supervisory authority, given to the federal probation office. With the enactment of 

legislation that was codified as D.C. Code § 24-133(c)(2) & (d), Congress adopted 

that division of authority in the District for the Parole Commission and CSOSA.

The government acknowledges D.C. Code § 24-133(c)(2) & (d) and 

§ 24-403.01(b)(6) but asserts that another statutory provision authorizes CSOSA to

impose GPS monitoring on Mr. Davis. The government looks to section 24-

133(b)(2), which lists the powers and duties of the CSOSA Director, among them

submitting annual appropriation requests and hiring supervision officers and support 

staff. Focusing on language that authorizes the Director to “[d]evelop and operate

intermediate sanctions and incentives programs for sentenced offenders,” D.C. Code 

§ 24-133(b)(2)(F), the government argues that this provision authorizes CSOSA to

unilaterally impose graduated “administrative sanctions” on releasees it determines 

to have violated their terms of release, and that GPS monitoring is a valid form of 

administrative sanction. We disagree that § 24-133(b)(2)(F), directing the Director 

of CSOSA to “[d]evelop and operate intermediate sanctions,” can be read to 

authorize CSOSA to wield administrative sanctions authority that impinges on the 

Parole Commission’s adjudicatory role.
26

The term “intermediate sanctions” appears in two places in the Revitalization 

Act: in the provisions authorizing the Director of CSOSA to “develop and operate”

them, Revitalization Act § 11233(b)(2)(E) (codified as D.C. Code 

§ 24-133(b)(2)(F)), and in a preceding provision creating and defining the mission 

of the Truth in Sentencing Commission, Revitalization Act § 11212 (codified as 

D.C. Code § 24-112). The Truth in Sentencing Commission was authorized to make 

recommendations to the Council for amendments to the D.C. Code for felony 

sentencing. See id. § 11212(a). In addition, the Commission was authorized to make 

“recommendations for implementation” to the Superior Court. Specifically, 

Revitalization Act § 11212(f)(1) (codified as D.C. Code § 24-112(f)(1)) directed the 

Commission to

transmit to the Superior Court of the District of Columbia 

recommended rules and principles for determining the 

sentence to be imposed, including . . . [w]hether to impose 

a sentence of probation, a term of imprisonment and/or 

fine, and the amount or length thereof, and including 

intermediate sanctions in appropriate cases. 

(emphasis added). We presume that the term “intermediate sanctions” in the 

Revitalization Act had the same meaning in both places it was used, see Edwards v. 

United States, 583 A.2d 661, 664 (D.C. 1990) (acknowledging the “presumption that 

identical words used in the same or related legislation were intended to have the 

same meaning”), and, as the initial reference clearly described sentencing options 

between incarceration or probation or a fine for courts, the latter reference did so as 
27

well.9

 Thus, section 11233(b)(2)(E) of the Revitalization Act authorized the 

Director of CSOSA to “develop and operate” these intermediate sentencing options 

for the courts. It did not confer power on the CSOSA Director through the agency’s 

officers to unilaterally impose administrative penalties on a supervised releasee upon 

a perceived violation of their conditions of release.

The Revitalization Act’s understanding of the term “intermediate sanctions” 

persisted in subsequent related legislation enacted by the Council. One year after 

Congress passed the Revitalization Act, the Council passed the Advisory 

Commission on Sentencing Establishment Act of 1998, which created a successor 

Commission to the Truth in Sentencing Commission. D.C. Law 12-167, 45 D.C. 

Reg. 5180. This new Commission was again directed to make recommendations 

regarding felony sentences to ensure that, inter alia, they “provide[d] for use of 

intermediate sanctions in appropriate cases.” D.C. Council, Report on Bill 12-550 

at 6 (May 13, 1998). And three years after the Revitalization Act, the D.C. Council 

enacted the SRAA, see supra note 7, to resolve questions about the supervised 

release system left unanswered by the Revitalization Act itself. See D.C. Council, 

 9 The dissent observes that the Balanced Budget Act also refers to 

“intermediate sanctions” in its Medicaid and Medicare+Choice provisions. Post at 

60 n.15. But the dissent does not explain why the appearance of these words in a 

wholly unrelated substantive context in an entirely separate act within an omnibus 

bill undermines our reliance on their use in an obviously substantively related 

provision in the same act. 
28

Report on Bill No. 13-696 at 2 (May 25, 2000). Here too, the Council appeared to 

adhere to an understanding of “intermediate sanctions” as sentencing options for 

courts; the committee report expressed a desire to give judges something other than 

“in/out” choices of pure incarceration and pure probation, such as work release, 

mandatory placement in a treatment center, or community corrections. Id. at 13-14 

(explaining “[i]deally the [c]ourt would have the authority to impose a sanction 

which is more restrictive than probation but less restrictive than incarceration”). 

This understanding of “intermediate sanctions” is muddied somewhat by the 

fact that Congress amended D.C. Code § 24-133(b)(2)(F) in 2016 to include 

reference to “incentives” alongside “intermediate sanctions.” See District of 

Columbia Courts, Public Defender Service, and Court Services and Offender 

Supervision Agency Act of 2015, Pub. L. 114-118, § 3(a), 130 Stat. 9, 13 (2016). 

The accompanying congressional committee materials indicate that the legislature 

at this later point in time understood this subsection to have granted CSOSA 

“specific statutory authority to punish sentenced offenders”—the nature of which is 

unspecified—and wished to authorize the corresponding use of “programmatic 

incentives” such as bus fares or fees for GED tests. See S. Rep. No. 114-110, at 2-

3 (2015).

Where does this leave us? We accept that Congressional reenactment of a 

statutory provision can, where there is “a showing of both congressional awareness 
29

and express congressional approval of an administrative interpretation of that 

provision,” change the prior meaning of statutory language. Gen. Am. Trans. Corp. 

v. ICC, 872 F.2d 1048, 1053 (D.C. Cir. 1989);see also Sawyer Prop. Mgmt. of Md., 

Inc. v. D. C. Rental Hous. Comm’n, 877 A.2d 96, 108 (D.C. 2005) (“At best the

reenactment of statutes is a nebulous foundation for statutory construction, and 

before a mere reenactment can be given conclusive effect as a [legislative] adoption 

of an administrative interpretation, it must be shown that [the legislature] was 

conscious that it was doing so.” (internal quotation marks omitted)). Although we 

see no indication in the legislative history that Congress was consciously discarding 

its previous understanding of “intermediate sanctions” in D.C. Code § 24-

133(b)(2)(F) as a sentencing option, we assume for purposes of this opinion that with 

the amendment to that statute authorizing the CSOSA Director to “[d]evelop and 

operate intermediate sanctions and incentives programs for sentenced offenders,”

CSOSA itself now holds some authority under its regulations to administratively

sanction—or incentivize—supervised releasees. 28 C.F.R. § 810.3(a), (b). 

It is “well[-]established,” however, that administrative sanctions are distinct 

from the conditions of release that the Parole Commission alone imposes. Hunt, 109 

A.3d at 623. Recognizing our obligation to read D.C. Code § 24-133 as a coherent 

whole, we decline to read the statute in such a way as to grant CSOSA an

administrative sanction authority that encroaches upon or overtakes the Parole 
30

Commission’s adjudicatory authority—authority which the Council has never 

sought to modify. See In re T.L.J., 413 A.2d 154, 158 (D.C. 1980) (noting the “wellaccepted tenet of statutory construction that, whenever possible, a statute should be 

interpreted as a harmonious whole” (internal quotation marks omitted)); Gondelman 

v. D.C. Dep’t of Consumer & Regul. Affs., 789 A.2d 1238, 1245 (D.C. 2002) (“In 

construing two subsections, we must at the same time give effect to the whole 

statute . . . .” (cleaned up)). Put another way, taking D.C. Code § 24-133(c)(2) & (d) 

and § 24-133(b)(2)(F) together, it is clear that (1) as the sole adjudicatory authority 

in the supervised release system, only the Parole Commission may impose or modify 

conditions of release, and (2) whatever CSOSA’s administrative sanctions authority 

is, it must not transgress on the Parole Commission’s adjudicatory role. We thus 

consider on what side of this divide GPS monitoring falls.10

 10 We reject the dissent’s argument that Congress, with the passage of the 2016 

amendments to D.C. Code § 24-133(b)(2)(F), knew that CSOSA had already claimed 

unilateral authority to impose GPS monitoring as a sanction and legislatively blessed 

this practice. Had this been the case, one would expect Congress to have (1) 

mentioned GPS monitoring and (2) commented on the need to legitimize its 

previously unauthorized unilateral imposition by CSOSA. But legislative history of 

the 2016 amendments reflects neither of these things. In its absence, the dissent 

looks to a grab bag of statements by CSOSA made at budget and oversight hearings

from years earlier about the use (not the legality) of GPS monitoring and even more 

generally to CSOSA’s 2003 notice in the Federal Register about its claimed authority 

to impose “graduated sanctions,” not identified to include GPS monitoring. See Post

at 51-54. These statements cannot be relied upon to show Congress’s knowledge 

and endorsement in 2016 of CSOSA’s unilateral imposition of GPS monitoring as 

an “intermediate sanction.” 
31

2. Warrantless Searches of People on Supervised Release

In the federal system, the division of authority between the courts and the 

probation office holds for warrantless searches, including GPS monitoring, which 

the courts alone can impose as a discretionary condition of release. See 18 U.S.C. 

§ 3583(d) (providing that “[t]he court may order” the imposition of discretionary 

conditions of release (emphasis added)); see also Admin. Off. of the U.S. Courts, 

Overview of Probation and Supervised Release Conditions 70-74, 78-80 (2016), 

https://www.uscourts.gov/sites/default/files/overview_of_probation_and_supervise

d_release_conditions_0.pdf; https://perma.cc/G5QN-QYMQ (providing that 

discretionary conditions of release that the court can impose include location 

monitoring via GPS and warrantless search and seizure). Federal probation officers 

have no independent authority to search releasees, including by subjecting them to 

GPS monitoring. For a person to be placed on GPS monitoring in the federal system, 

the monitoring must be ordered by the court.11 

 11 This allocation of authority appears clear enough that neither the 

government nor the dissent can identify any case from the federal courts of appeals 

where a federal probation officer sought to or did impose GPS monitoring on a 

person without court approval, let alone one where a court blessed this practice. The 

government points to United States v. Durham, 618 F.3d 921 (8th Cir. 2010), and 

United States v. Mickelson, 433 F.3d 1050 (8th Cir. 2006), but in those cases, both 

from one Circuit, the court had specifically ordered that the supervisee in question 

submit to location tracking at the probation office’s discretion. Durham, 618 F.3d 

at 932; Mickelson, 433 F.3d at 1056. This is a distinct and distinguishing 
32

Consistent with federal courts’ treatment of searches generally and GPS 

monitoring in particular as conditions of release, the Parole Commission treats the 

condition of warrantless searches as one imposed on supervised releasees only at its

discretion. Compliance with warrantless searches is not a standard condition under 

the Commission’s regulations. See 28 C.F.R. § 2.204(a)(3)-(6). Rather, such 

warrantless searches are authorized only when the Commission specifies it as a 

“special condition” of release, imposed on a case-by-case basis. Id.

§ 2.204(b)(2)(iv). In line with 18 U.S.C. § 3583(d), which D.C. Code § 24-133(c)(2)

 

circumstance both subject to question under cases like Matta, 777 F.3d at 122, cited 

supra Part II.C.I, and not present here, as discussed infra Part II.D.

The dissent asserts that we fail to “adequately explain” why GPS monitoring 

should not be viewed as administrative sanction. Post at 56. But the answer is that 

GPS monitoring has been deemed both a search by the Supreme Court, see supra 

Part II.A., and a condition of release by the federal courts. The dissent’s cases are 

not to the contrary. They just show that the federal appellate courts have discerned 

impermissible delegations of judicial authority regarding conditions of supervised 

release in a variety of contexts. And the one unpublished decision the dissent cites 

for the questionable proposition that “home detention is . . . more onerous than GPS 

monitoring,” United States v. Fiume, 643 F. App’x 25, 28 (2d Cir. 2016), actually 

upholds the trial court’s imposition of GPS monitoring as a condition of release. 

As for the one state court decision the dissent cites, Commonwealth v. Cory, 

911 N.E.2d 187, 195 (Mass. 2009), we disagree it supports the proposition that GPS 

monitoring is only a condition of release when it is imposed for the entire supervision 

period. Id. at 189 (holding that it would violate the Ex Post Facto Clause to apply a 

statute requiring all probationers convicted of sex offenses to wear GPS monitors 

for the duration of their probation to defendant because it post-dated the commission 

of his offense). In any event, state court decisions do not provide helpful guidance 

where Congress has reserved to the Parole Commission the same authority possessed 

by federal trial courts to impose conditions of release. 
33

incorporates, the Parole Commission must “determine that imposing the condition 

is reasonably related” to (1) the “nature and circumstances” of a given case, and 

(2) the purpose of deterrence, protection of the public, or both. Id. § 2.204(b)(1). 

The Parole Commission must also weigh “whether the condition involves no greater 

deprivation of liberty than is reasonably necessary” to serve the purpose identified. 

Id. To modify a person’s conditions of release—for example, to impose a special 

search condition as a consequence of a violation—the Parole Commission must 

consider the same criteria and then provide the releasee with notice and a ten-day 

period to object.12 Id. § 2.204(c). 

 12 The Commission’s regulations direct releasees supervised by CSOSA to 

“comply with the sanction(s) imposed by the supervision officer and as established 

by an approved schedule of graduated sanctions,” 28 C.F.R. § 2.204(a)(6)(vi). But 

the regulations do not indicate the nature or scope of sanctions that the Parole 

Commission deems permissible to impose. Much less do they expressly purport to 

carve out GPS monitoring from the other types of special conditions of release—

including searches—that the Commission reserves to its discretion, 28 C.F.R. 

§ 2.204(b)(1)(4) (listing special conditions of release “we,” i.e., the Commission 

“may impose”), and authorize CSOSA to unilaterally search a supervised releasee 

via GPS. 

But even if the Commission’s regulations purported to expressly subdelegate 

to CSOSA some measure of the Commission’s delegated-by-Congress authority to 

impose conditions of release, that subdelegation would have no legal force.

Although “[w]hen a statute delegates authority to a federal officer or agency, 

subdelegation to a subordinate federal officer or agency is presumptively 

permissible,” U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004), 

“[t]here is no [permissibility] presumption covering subdelegations to outside 

parties.” Id. Rather, “subdelegation to outside parties are assumed to be improper 

absent an affirmative showing of congressional authorization.” Id. (citing, inter alia,

Shook v. D.C. Fin. Resp. & Mgmt. Assistance Auth., 132 F.3d 775, 783-84 & n.6 
34

The Parole Commission’s Rules and Procedures Manual (2010), which is 

posted on the Commission’s website,13 underscores that the Commission regards 

unilateral searches of releasees to be beyond the discretion of CSOSA and its 

officers.14 According to the Manual, “[s]earches by Supervision Officers are 

 

(D.C. Cir. 1998)). Here, CSOSA is not within the Commission’s chain of command. 

See 18 U.S.C. § 4203 (Powers and Duties of the Commission) & § 4204 (Powers 

and duties of the Chairman) [Repealed]. Rather, it is an outside entity. See, e.g., 

Shook, 132 F.3d at 784 (rejecting argument that the Emergency Transitional 

Education Board of Trustees was a lawful “subdelegee” of the District of Columbia’s 

Financial Responsibility and Management Assistance Authority (Control Board), 

notwithstanding the Board of Trustees’s obligation to “report to the [Control Board]” 

and the fact that their decisionmaking powers “are subject to the Control Board’s 

approval” because the Board of Trustees was a separate entity from the Control 

Board); see also U.S. Telecom Ass’n, 359 F.3d at 213 (explaining that “[w]hen an 

agency delegates its authority to its subordinate, responsibility—and thus 

accountability—clearly remain with the federal agency” (emphasis added)). Thus, 

in order for the Commission to subdelegate some of its conditions-of-release powers 

to an outside entity like CSOSA, Congress or the Council would have had to 

affirmatively authorize such subdelegation. But no statute expressly authorizing 

such subdelegation by the Commission exists. Compare Gentiva Healthcare Corp. 

v. Sebelius, 723 F.3d 292, 296 (D.C. Cir. 2013) (subdelegation to external private 

contractor permitted where congress expressly authorized the Secretary of Health 

and Human Services to “perform any of [her] functions under this subchapter 

directly or by contract . . . ,as the Secretary may deem necessary” (original emphasis 

omitted)) with Shook, 132 F.3d at 783-84; see, e.g., 18 U.S.C. § 4203(c)(3)

[repealed] (conferring power on the Commission to “delegate authority to conduct 

[parole] hearings held pursuant to section 4214 to any officer or employee of the 

executive or judicial branch of Federal or State government”).

13 https://www.justice.gov/d9/uspc/legacy/2010/08/27/uspcmanual111507.pdf; https://perma.cc/XXU2-RGC7. See 

https://www.justice.gov/uspc (under “Resources”); https://perma.cc/2XBY-UHZ5.

14 The Manual does list “curfew with electronic monitoring” as one of the 

graduated sanctions that CSOSA may impose. USPC Rules and Procedures Manual
35

disfavored” compared to other supervisory techniques, in part because the Parole 

Commission recognizes the Fourth Amendment implications of warrantless searches

and the “restrictions on the liberty of the releasee” that search conditions entail. 

USPC Rules and Procedures Manual § 2.204-18(a). If a supervision officer does 

wish to conduct a search of a releasee, then the search “should be conducted only 

(1) pursuant to conditions of release that specifically permit such searches or 

(2) pursuant to the consent of the releasee freely and voluntarily given.” Id.; accord 

id. § 2.204-18(d)(1) (“A search of the person . . . may be conducted by a Supervision 

Officer only upon consent or pursuant to a special condition of release, as provided 

by these guidelines.”). And the rules are clear that the Parole Commission assumes 

exclusive authority to impose search conditions, as with any other conditions of 

release. Id. § 2.204-18(b)(1).

Consonantly, CSOSA does not, in its own regulations, claim the general 

 

§ 2.204-21. But this language traces back at least to the 1997 version of the Manual, 

which pre-dated use of GPS monitoring technology and could only have referred to 

the location- and time-bound radio-frequency technology then available. See

discussion infra Part II.C.3 and U.S. Parole Commission, U.S. Parole Commission 

Rules & Procedures Manual § 2-40(e) (1997). The distinctions between that form 

of sanction and the 24-hour surveillance Mr. Davis experienced aside, the most 

recent version of the Manual was published in 2010, well predating the Supreme 

Court’s 2015 decision in Grady that clarified that GPS monitoring should be 

considered a search under the Fourth Amendment. It is therefore far from clear that 

the Parole Commission understood that “curfew with electronic monitoring” may be 

subject to the same Fourth Amendment considerations as other searches when it 

published these rules. 
36

authority to search those under its supervision at its discretion, without a warrant or 

other authorization. But CSOSA’s regulations provide that, if a releasee’s 

supervision officer “has reason to believe” the releasee has failed to abide by the 

conditions of their release, the releasee “will be in violation of the conditions” and 

the officer “may then impose administrative sanctions.” 28 C.F.R. § 810.3(a). Many

of the listed sanctions are simply extensions of preexisting supervisory conditions, 

such as increasing mandatory check-ins, drug testing, or group activities. Id.

§ 810.3(b). The list also includes “[e]lectronic monitoring for a specified period of 

time,” id. § 810.3(b)(6), but the regulation does not otherwise suggest that requiring

a releasee to submit to searches protected by the Fourth Amendment without Parole 

Commission authorization is an available administrative sanction.15 And the 

regulations acknowledge that CSOSA’s sanctions decisions remain subject to the 

Commission’s override or modification. See id. § 810.3(c). This regulation 

 15 One of the listed administrative sanctions is “[i]ncreased drug testing.” 28 

C.F.R. § 810.3(b)(3). This court has recognized that drug testing implicates the 

Fourth Amendment. See In re G.B., 139 A.3d 885, 893-94 (D.C. 2016) (citing 

Skinner v. Ry. Lab. Execs. Ass’n, 489 U.S. 602, 617 n.4, 618 (1989)); Oliver v. 

United States, 682 A.2d 186, 189-93 (D.C. 1996); see also United States v. Stephens, 

424 F.3d 876, 882-83 (9th Cir. 2005) (concluding that, in the federal system, the 

court and not the supervision officer must determine the maximum frequency of drug 

testing). The drug testing sanction is not in question in this case, and we do not 

decide its validity here. Nor do we decide the validity of “[p]lacement in a 

residential sanctions facility or residential treatment facility for a specified period of 

time” as a unilateral administrative sanction, 28 C.F.R. § 810.3(b)(8), which, 

Mr. Davis argues, also implicates significant liberty interests. 
37

permitting “electronic monitoring” is what the government asserts authorized 

Mr. Davis’s placement on 24/7 GPS tracking.

3. The Reasonableness of CSOSA’s Electronic Monitoring

Regulation

We assess the reasonableness of CSOSA’s electronic monitoring regulation

against the statutory backdrop discussed above and in the context of its origins. 

Historically, location monitoring of people on parole, probation, or supervised 

release was limited to radio-frequency (RF) technology, which was used “principally 

for home detention applications.” Harold I. Heaton, GPS Monitoring Practices in 

Community Supervision and the Potential Impact of Advanced Analytics 1, Nat’l 

Inst. of Just. (2016). Like GPS monitoring, RF technology requires the physical 

attachment of a tracking device to a person. But unlike GPS, its use is limited to 

confirming a person’s presence at or absence from a particular location or a limited 

range therefrom, during specific hours. See Federal Location Monitoring, United 

States Courts, https://www.uscourts.gov/services-forms/probation-and-pretrialservices/supervision/federal-location-monitoring; https://perma.cc/HE66-N3T9

(last visited May 11, 2023). In 2001, CSOSA promulgated a regulation authorizing 

its administrative sanctions program and included “[e]lectronic monitoring for a 

specified period of time” as one of the available sanctions. See Community 

Supervision: Administrative Sanction Schedule, 66 Fed. Reg. 48336, 48338 (Sept. 
38

20, 2001) (codified at 28 C.F.R. pt. 810). At the time it was drafted, the regulation

used the term “electronic monitoring” in its “traditional[]” sense, which was “curfew 

monitoring of individuals confined to their homes (or other locations) by RF-based 

systems.” See Heaton, supra, at 1 n.3 (internal quotation marks omitted). 

Two years after this regulation was promulgated, in 2003, CSOSA adopted 

GPS tracking technology for supervisory purposes. CSOSA, GPS and Offender 

Supervision in Washington, D.C., D.C. Public Safety Radio (May 31, 2013), 

https://media.csosa.gov/podcast/transcripts/gps-and-offender-supervision-inwashington-d-c-dc-public-safety-radio/; https://perma.cc/N7JL-VWX8. The 

agency’s reach into the lives of those whom it supervised in this manner thus 

extended enormously. CSOSA’s GPS monitoring system “tracks and records the 

movements of the GPS devices in one-minute increments, twenty-four hours a day, 

seven days a week.” Jackson, 214 A.3d at 470. As the agency began using this 

more intrusive mode of surveillance, however, no corresponding amendment to its 

regulations ensued. Rather, CSOSA continued to rely on its preexisting regulation 

authorizing it to impose “electronic monitoring” as an administrative sanction. See

Community Supervision: Administrative Sanctions, 68 Fed. Reg. 19738, 19738 

(Apr. 22, 2003) (codified at 28 C.F.R. pt. 810) (finalizing interim regulations 

published in September 2001 that referred only to “electronic monitoring”).

In the 2010s, the Supreme Court made clear in a series of decisions that GPS 
39

monitoring was a search subject to Fourth Amendment protections because of a 

person’s privacy interests in both their physical person and their movements. See

supra Part II.A. Neither CSOSA’s nor the Parole Commission’s rules and 

regulations appear to have been amended to reflect this shift in the constitutional 

landscape. CSOSA appearsto have continued to treat location monitoring, including 

around-the-clock, everywhere-you-go GPS tracking, as a sanction subject to its 

discretion, while the Parole Commission treated all other Fourth Amendment 

searches as conditions requiring its approval.16

We conclude that this regulatory scheme allowing CSOSA to unilaterally 

order GPS searches is unlawful under the statutory scheme which entrusts the Parole 

Commission with the equivalent power of a federal trial court to impose conditions 

of release (including the condition that a person subject themselves to search), and 

 16 The government argues that this court should construe the fact that the 

legislature has not acted to curtail CSOSA’s use of GPS monitoring in its graduated 

sanctions program as approval of that practice by the agency. We are doubtful of 

the interpretive weight that legislative inaction should be given here. Rivera v. Lew, 

99 A.3d 269, 275 (D.C. 2014) (“[W]e have often noted the hazard of attempting to 

impute meaning to legislative inaction unless it is absolutely clear the [legislature] 

can be said to have known about an issue, cared about it, and somehow dealt with 

it.” (internal quotation marks omitted)). This skepticism holds especially true 

where, as here, the inaction cuts both ways: even as it became clear that the 

imposition of GPS monitoring was an exclusively adjudicatory function in the 

analogous federal system, the legislature also left in place the language in D.C. Code 

§ 24-133(c)(2) & (d) that requires CSOSA to act “on behalf of” the entity (here the 

Parole Commission) with “jurisdiction” over the supervised releasee and that directs 

that the Commission and CSOSA shall have the same powers as the federal courts 

and the Probation Office, respectively.
40

is unreasonable under the Fourth Amendment. 

On one side of the balance of interests, it is well established that 24-hour GPS 

surveillance represents a “serious intrusion on personal privacy,” both from the 

trespass on the person and “the government’s prolonged, minute-by-minute tracking 

and recording of all of a person's movements and whereabouts.” Jackson, 214 A.3d 

at 477. In the CSOSA system, those movements and whereabouts are stored 

indefinitely and made available to multiple government agencies, meaning the scope 

of the privacy intrusion reaches far beyond a person’s individual supervision officer. 

See supra Part I. Further, GPS monitoring also encroaches upon a releasee’s liberty 

interests: the maintenance of the tracking device imposes daily or even continuous 

restrictions on the releasee’s actions, see id., and failing to comply with these 

restrictions can lead to additional restrictions all the way up to re-incarceration, cf. 

Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 

822, 833-34 (2002) (weighing the lack of law enforcement or disciplinary 

consequences from a special needs search in favor of the search’s reasonableness).

On the other side of the balance, the government has no counterweight; it 

cannot have a significant interest in one of its agencies conducting Fourth 

Amendment searches in excess of the agency’s statutory authority. Cf. Moore v. 

Gaither, 767 A.2d 278, 284 (D.C. 2001) (“[A] regulation may properly govern only 

those matters that the statute authorizes it to govern . . . .”). As we have held
41

previously, CSOSA need not obtain a warrant every time it wishes to search a person 

on supervised release. Atchison, 257 A.3d at 531. But, as laid out here, the statutory 

division of authority demands that such conduct be authorized by the U.S. Parole 

Commission, which by its own regulations offers substantive and procedural 

safeguards to ensure searches are conducted only when appropriate, as a formal 

condition of release. See supra Part II.C.2. 

Needless to say, the Parole Commission’s broad (and pre-Grady) regulatory 

directive that releasees comply with CSOSA’s graduated sanctions program, 28 

C.F.R. § 2.204(a)(6)(vi), see supra note 12, cannot override that statutory mandate. 

Agencies may only wield the authority given to them by their organizing statutes. 

District of Columbia v. Brookstowne Cmty. Dev. Co., 987 A.2d 442, 449 (D.C. 2010) 

(“Agencies are creatures of statute and their authority and discretion are limited to 

that which is granted under their founding statutes. Therefore, regulations they enact 

pursuant to that statutorily provided authority cannot expand that authority.”). And 

they cannot (without statutory authorization) delegate their powers to other agencies. 

See District of Columbia v. White, 435 A.2d 1055, 1057 (D.C. 1981) (stating that a 

“prohibitive or conflicting statute or authority [could] preclude[] . . . delegation” of 

powers by an agency like the Commission); cf. Bayou Lawn & Landscape Servs. v. 

Sec’y of Lab., 713 F.3d 1080, 1084–85 (11th Cir. 2013) (“Even if it were not 

axiomatic that an agency’s power to promulgate legislative regulations is limited to 
42

the authority delegate[d] to it by Congress, we would be hard-pressed to locate that 

power in one agency where it had been specifically and expressly delegated by 

Congress to a different agency.” (internal citation omitted)). 18 U.S.C. § 3583(d), 

which is incorporated in D.C. Code § 24-133(c)(2), makes evident that the Parole 

Commission could not delegate outright the imposition of conditions of release to 

CSOSA. See supra Part II.C.1. It follows that the Commission could not make the 

same delegation implicitly via its regulations.

17 

In reaching our conclusion that GPS monitoring as a search may only be 

ordered by the Commission, just as it may only be ordered by a court in the federal 

supervised release system, we are not, as the dissent charges us, “nullifying” D.C. 

Code § 24-133(b)(2)(F), see Post at 64. Rather, we are reading this provision as a 

harmonious whole with D.C. Code § 24-133(c)(2) & (d), and holding that whatever 

powers CSOSA has to administratively sanction supervised releasees, they do not 

include unilaterally subjecting releasees to GPS monitoring because such a power 

would arrogate to CSOSA what has been reserved to the Commission through D.C. 

 17 The dissent argues that there is no unlawful delegation however if 

“CSOSA’s sanctions decisions remain subject to the Commission’s override or 

modification.” Post at 62. The process by which a supervised releasee might seek 

Commission review of a CSOSA decision to impose GPS monitoring before such 

monitoring commences is unexplained. And again, the statute entrusts to the 

Commission the same authority federal courts possess to impose conditions of 

release, and GPS monitoring as a condition is not delegated to the reviewable 

discretion of probation officers. D.C. Code § 24-133(c)(2) & (d).
43

Code § 24-133(c)(2) & (d). 

* * *

For the reasons set forth above, we conclude that CSOSA’s electronic 

monitoring regulation is not a reasonable regulation on which a special needs search 

may be based. In light of this conclusion, we do not reach Mr. Davis’s other special

needs arguments that even under CSOSA’s electronic monitoring regulation he 

should not have been eligible for GPS monitoring as a “high risk” releasee, see 

Jackson, 214 A.3d at 479 (stating that the fact that CSOSA “reasonably limit[ed] its 

use [of GPS tracking] to high-risk” probationers weighed “heavily in favor of the 

search’s reasonableness”), and that the extended duration of his GPS monitoring 

exceeded that which was authorized under CSOSA’s electronic monitoring 

regulation. 

D. Knights and Samson Are Inapplicable

Finally, while acknowledging that our precedents indicate that this court may 

assess this case under a special needs framework, the government argues that we 

need not do so because United States v. Knights, 534 U.S. 112 (2001), and Samson 

v. California, 547 U.S. 843 (2006), provide an independent basis to justify CSOSA’s 

actions. Knights and Samson each engaged in a general totality-of-thecircumstances analysis and concluded that law enforcement acted reasonably in 

searching parolees and probationers without a warrant and outside of the “special
44

needs” framework; the government would have us do likewise and conclude, like 

the trial court, that CSOSA’s warrantless GPS monitoring was reasonable under the 

totality of the circumstances.

In so arguing, the government leaves out a key circumstance distinguishing 

these cases. In Knights and Samson, law enforcement officers were expressly 

authorized by statute or a court to search probationers and parolees, respectively, 

without a warrant. In Samson, the Supreme Court stressed that a California statute 

required parolees “to submit to suspicionless searches by a parole officer or other 

peace officer at any time.” 547 U.S. at 852 (internal quotation marks omitted). 

Similarly, a probation order imposed by a judge in Knights allowed “any probation 

officer or law enforcement officer” to “search [Mr. Knights] at any[]time, with or 

without a search warrant, warrant of arrest or reasonable cause.” 534 U.S. at 114, 

119-120. These explicit authorizations specifically permitting law enforcement 

officers to search parolees and probationers at any time were what provided the 

grounds for the searches. Therefore, the court did not need to assess the 

reasonableness of any regulation governing the law enforcement agencies in 

question; the explicit authorizations, not the regulations, were what stood in for the 

standard warrant requirement. 

Here, CSOSA had no such explicit authorization to search Mr. Davis, through 

a Commission-imposed condition or otherwise, and as we explained herein it lacked 
45

the authority to conduct the search in absence of the Parole Commission’s approval. 

Had the Commission imposed a special condition of release on Mr. Davis 

authorizing warrantless searches generally or GPS monitoring specifically, 

Mr. Davis would be more similarly situated to Mr. Knights and it would likely then 

be appropriate to assess whether, under the totality of the circumstances, CSOSA’s 

search of Mr. Davis was reasonable. But in the absence of such a condition, 

Mr. Davis’s expectation of privacy was not diminished to the same extent that 

Mr. Knights’s and Mr. Samson’s were. We conclude that it would be inappropriate 

to apply the logic of Knights and Samson in this case.

E. Conclusion

CSOSA possesses significant authority to monitor the actions of people on 

supervised release. But given the statutory landscape surrounding its operations and 

the constitutional constraints on warrantless searches, its regulations may not

reasonably authorize its officers to impose electronic monitoring in the form of GPS 

tracking on supervised releasees absent the express authorization of the Parole 

Commission and its procedures that protect against other Fourth Amendment 

searches of releasees’ persons. Therefore, the GPS data collected from Mr. Davis 

should have been suppressed under a special needs analysis. We thus reverse the 

denial of Mr. Davis’s suppression motion, vacate Mr. Davis’s conditional guilty 

plea, and remand for further proceedings consistent with this opinion.
46

So ordered.

THOMPSON, Senior Judge, dissenting: Having served a term of imprisonment 

for armed robbery, appellant Davis began a period of supervised release in 2013.1

In May 2016, during the supervision period, he was arrested on a charge of assault 

on a police officer. His Community Supervision Officer (“CSO”) from the Court 

Services and Offender Supervision Agency (“CSOSA”) referred him for GPS 

monitoring as a sanction for failure to comply with his conditions of release. Ten 

days before appellant’s CSO discharged him from GPS monitoring, the Metropolitan 

Police Department (“MPD”) responded to a report of an armed carjacking. MPD 

subsequently searched the location records of all people on CSOSA GPS monitoring 

to identify anyone who was near the carjacking site at the time of the incident. That 

search linked appellant to the time and location of the carjacking and also to the area 

where MPD later found the car. As a result, appellant was indicted in connection 

with the incident. He entered a conditional guilty plea, reserving the right to 

challenge denial of his motion to suppress the evidence derived from the GPS 

monitoring that had linked him to the crime. 

 1 It appears that at the time, appellant was also on probation for a Maryland 

offense. 
47

My colleagues in the majority now conclude that the GPS data collected from 

appellant should have been suppressed. They do so primarily based on their 

acceptance of arguments by appellant that in my view are demonstrably wrong and 

that, in any event, should have been subjected to plain-error review and rejected on 

the ground that there was no obvious error in the Superior Court ruling denying 

appellant’s motion to suppress.

The majority opinion accepts appellant’s argument that CSOSA’s regulation 

(28 C.F.R. § 810.3(b)(6) (2023)) that authorizes CSOs to impose electronic 

monitoring (here, in the form of GPS tracking) as a sanction for a supervised 

releasee’s violation of conditions of release “exceed[s] the agency’s legal authority” 

(or, in the words of the majority opinion, “falls outside the agency’s statutory 

authority”). Ante at 3, 4, 19, 38-39 and passim. Yet, as I discuss in more detail 

below, the plain language of CSOSA’s authorizing statute, its legislative history, and 

CSOSA’s interpretation of its statutory mandate as made known to Congress all 

confirm CSOSA’s statutory authority to operate its sanctions program. In a nutshell, 

in amending the CSOSA-authorizing statute in 2016, Congress (1) expressed its 

understanding that the statute theretofore had authorized CSOSA to impose 

sanctions for supervisees’ non-compliance with their conditions of release and 

(2) with that understanding, re-authorized CSOSA’s use of sanctions (and 

additionally authorized CSOSA to develop and operate a program of incentives to 
48

encourage compliance with conditions of release). Congress re-enacted that 

authorization while having been made aware that CSOSA understood itself to have 

discretion to place supervised releasees on GPS monitoring as a sanction for noncompliance with conditions of release without needing to delay action to seek court 

or United States Parole Commission (“Parole Commission” or “USPC”) approval. 

In light of these clear expressions of legislative intent, my colleagues’ conclusion

that the CSOSA regulation is beyond CSOSA’s statutory authority does not 

withstand scrutiny. 

A. The statutory background

Through the National Capital Revitalization and Self-Government 

Improvement Act of 1997 (the “Revitalization Act” or the “Act”), part of the 

Balanced Budget Act of 1997, Pub. L. No. 105-33, §§ 11231-33, 111 Stat. 712, 

745-51, Congress established CSOSA as a new federal agency responsible for the 

“supervision . . . for offenders on probation, parole, and supervised release . . . on 

behalf of the court or agency having jurisdiction over the offender being supervised.” 

Id. § 11233(c)(1) (codified at D.C. Code § 24-133(c)(1)). Inter alia, CSOSA’s 

Director is to “determine . . . uniform supervision . . . practices for the Agency.” Id.

§ 11233(b)(2)(B) (codified at D.C. Code § 24-133(b)(2)(B)). While the Act required 

CSOSA to “supervise any offender who is released from imprisonment for any term 

of supervised release imposed by the Superior Court of the District of Columbia,” it 
49

also mandated that such offenders “shall be subject to the authority of the United 

States Parole Commission [the “Parole Commission”] until completion of the term 

of supervised release.” Id. § 11233(c)(2) (codified at D.C. Code § 24-133(c)(2)). 

As to persons serving terms of supervised release imposed by the Superior Court, 

the Parole Commission generally “shall have and exercise the same authority as is 

vested in the United States district courts” under 18 U.S.C. § 3583. Id. 

Under D.C. Code § 24-133(d), enacted as part of the Revitalization Act, 

CSOSA supervision officers “shall have and exercise the same powers and authority 

as are granted by law to United States Probation and Pretrial Officers.” Id.

§ 11233(d). The Act also mandated, however, that the CSOSA Director “shall . . . 

develop and operate intermediate sanctions programs for sentenced offenders.” Id.

§ 11233(b)(2)(F) (codified as amended at D.C. Code § 24-133(b)(2)(F)). The 

Revitalization Act did not define the term “intermediate sanctions.”2 But in 2016, 

 2 Congress may have perceived no need to do so because the term, also used 

elsewhere in the Balanced Budget Act, has a commonplace meaning: a sanction that 

is not as severe as the most severe available sanction but more severe than the least 

severe one. See, e.g., Balanced Budget Act § 4707(e), 111 Stat. 489, 503-04 (adding 

to 42 U.S.C. § 1396v a new paragraph pertaining to the use of intermediate 

sanctions, i.e., sanctions other than contract termination, against Medicaid managed 

care organizations that violate HHS rules protecting enrollees); see also, e.g., 

Regulations Governing Practice Before the Internal Revenue Service, 67 Fed. 

Reg. 48760, 48762 (July 26, 2002) (referring to censure as an intermediate sanction, 

short of the more significant sanctions of suspension or disbarment, that can be 

invoked to discipline errant practitioners who practice before the IRS); Medicare 

Program; Appeal Rights and Procedures for Beneficiaries Enrolled in Prepaid Health 
50

Congress enacted new legislation to expand CSOSA’s authority. See District of 

Columbia Courts, Public Defender Service, and Court Services and Offender 

Supervision Agency Act of 2015, Pub. L. 114-118, § 3(a), 130 Stat. 9, 13 (2016). In

its Report on the bill that culminated in that legislation (the DC Court Services and 

Offender Supervision Agency Act of 2015, S. Rep. No. 114-110 (2015)), the 

Committee on Homeland Security and Governmental Affairs explained its 

understanding that CSOSA “has specific statutory authority to punish sentenced 

offenders but lacks statutory authority to improve reentry programs by offering 

incentives to those sentenced offenders who succeed.” Id. at 2. The Committee 

explained that “[w]ith the authority provided under this bill, the agency could 

provide simple, low cost items to former offenders such as bus fares to job interviews 

and fees for GED tests if those offenders are doing particularly well in the reentry 

program.” Id. The legislation amended D.C. Code § 24-133(b)(2)(F)), so that 

instead of mandating the CSOSA Director just to “[d]evelop and operate 

 

Care Plans, 59 Fed. Reg. 59933, 59937 (Nov. 21, 1994) (referring to use of 

intermediate sanctions to penalize Medicare/Medicaid providers for program noncompliance); Clinical Laboratory Improvement Act Programs; Fee Collection, 55 

Fed. Reg. 31758, 31759 (Aug. 3, 1990) (pertaining to loss of certification, loss of 

Medicare approval, or instead intermediate sanctions that may be imposed on 

clinical laboratories that fail to meet applicable requirements of the Clinical 

Laboratory Improvements Act); Broadcast Services; Broadcast Hoaxes, 57 Fed. 

Reg. 28638, 28639 (June 26, 1992) (providing the FCC “with the option of imposing 

an intermediate sanction [that] has more deterrence value than admonition but [] is 

less drastic than license revocation or non-renewal,” so as to deter the broadcast of 

serious hoaxes). 
51

intermediate sanctions for sentenced offenders,” it requires the Director to “develop 

and operate intermediate [sanctions] sanctions and incentives.” Id. at 10 (brackets 

and italics indicating that the word “sanctions” was stricken and the phrase 

“sanctions and incentives” was added). Thus, in enacting the legislation, Congress 

re-enacted the CSOSA Director’s mandate with an express understanding that this 

mandate included “specific statutory authority to punish sentenced offenders.” Id.

at 2.

My colleagues in the majority accord little weight to this important point about 

the understanding expressed by the 114th Congress when it amended 

§ 24-133(b)(2)(F) in 2016 and re-enacted CSOSA’s duty to develop and operate a 

program of intermediate sanctions. My colleagues’ approach is not saved by the 

familiar maxim that the views of a later Congress provide no insight into the intent 

of the Congress (the 105th Congress) that first enacted the language requiring the 

CSOSA Director to “develop and operate intermediate sanctions programs.” That 

is because the re-enactment, accompanied by Congress’s explicit statement about its 

understanding of the re-enacted statutory term, makes the “views of a later 

Congress” maxim inapt. The relevant principle here is the following: that “[w]hen 

a Congress that re-enacts a statute voices its approval of an . . . interpretation thereof, 
52

Congress is treated as having adopted that interpretation, and [courts are] bound 

thereby.” United States v. Bd. of Comm’rs, 435 U.S. 110, 134 (1978).

3

Further, Congress did not legislate in a vacuum when it amended the CSOSA 

authorizing statute to re-enact the agency’s sanctions mandate and to add a mandate 

to develop and operate an incentives program. In promulgating its final rule entitled 

“Community Supervision: Administrative Sanctions” in 2003, CSOSA had 

explained that the “purpose of imposing sanctions is to enable CSOSA staff to 

respond as swiftly, certainly, and consistently as practicable to non-compliant 

behavior,” 68 Fed. Reg. 19738, 19738 (Apr. 22, 2003), and stated that its sanctions 

“present the community supervision officer with a range of corrective actions (see § 

810.3) which can be applied short of court or USPC approval.” Id. (emphasis 

added). During congressional hearings on District of Columbia appropriations for 

fiscal year (FY) 2005, Congress had been advised of CSOSA’s interpretation that 

“[o]ffenders who are under parole or supervised release supervision may be placed 

 3 See also United States v. Freeman, 44 U.S. 556, 564-565 (1845) (“[I]f it can 

be gathered from a subsequent statute in pari materia, what meaning the legislature 

attached to the words of a former statute, they will amount to a legislative declaration 

of its meaning, and will govern the construction of the first statute.”); Orr v. United 

States, 343 F.2d 553, 556 (5th Cir. 1965) (“[H]ere[,] the later Congress reenacted 

the words of the earlier Congress; the legislative history in the later Congress is a 

gloss on the statute.”).
53

on GPS monitoring at CSOSA’s discretion” (emphasis added).4

 Congress heard 

much the same during hearing on District of Columbia appropriations for FY 2006: 

that CSOSA had “worked with the D.C. Superior Court and the U.S. Parole 

Commission to define a range of sanctions that the Community Supervision Officer 

can impose without the delay of seeking judicial or paroling authority approval.”5

 

In a 2011 congressional hearing on general government appropriations for FY 2012, 

Congress was again advised that CSOSA had “develop[ed] a range of options that 

Officers can implement immediately, prior to requesting that offenders be 

sanctioned by the releasing authority.”6

 

 4 District of Columbia Appropriations for Fiscal Year 2005: Hearing on H.R. 

4850/S. 2826 Before the S. Subcomm. of the Comm. on Approps., 108th Cong. 32 

(2004) (answers submitted by Paul A. Quander, Jr., Director, CSOSA) (explaining 

also that “[o]ffenders who are placed on this type of electronic monitoring generally 

have violated conditions of their supervision, and the GPS is used when other 

intermediate sanctions have been exhausted”).

5 District of Columbia Appropriations for Fiscal Year 2006: Before the S. 

Subcomm. of the Comm. On Approps., 109th Cong. 46 (2005) (answers submitted 

by Paul A. Quander, Jr., Director, CSOSA).

6 Financial Services and General Government Appropriations for 2012: 

Hearings Before the H. Subcomm. of the Comm. on Approps., 112th Cong. 109 

(2011) (statement of Adrienne R. Poteat, Deputy Director, CSOSA). In a hearing 

on general government appropriations for FY 2009, the CSOSA Director advised 

Congress that “[s]ince fiscal year 2004, CSOSA ha[d] placed over 2,000 high-risk 

offenders on Global Positioning System (GPS) monitoring to reinforce compliance 

and track their location[.]” Financial Services and General Government 

Appropriations for Fiscal Year 2009: Hearing before the S. Subcomm. of the Comm. 

on Approps., 110th Cong. 416 (2009) (statement by Paul A. Quander, Jr., Director, 

CSOSA).
54

And it was not only in appropriations hearings that Congress was apprised of 

the sanctions CSOSA was employing. The then-CSOSA Director told a 

congressional oversight committee in 2008 that CSOSA had placed more than 2,000 

high-risk offenders on GPS monitoring since FY 2004.7

 The then-Acting Director 

of CSOSA told the same oversight committee in 2009 that “CSOSA imposes 

increasingly restrictive penalties on offenders for violating their release conditions” 

and that the sanctions “can involve . . . GPS monitoring.”8

 The Acting Director went 

on to answer questions about the effectiveness of GPS.9

 These statements from 2009 

were made during an oversight hearing in which the subcommittee was specifically 

focused on “the policies and practices of . . . the Parole Commission or the Court 

Services and Offender Supervision Agency,” the effectiveness of the agencies’ 

carrying out of their criminal justice responsibilities, and “the use of graduated 

 7 Advancements and Continual Challenges in the Parole, Supervised Release 

and Revocation of D.C. Code Offenders: Hearing before the H. Subcomm. on Fed.

Workforce, Postal Service, and D.C. of the Comm. on Oversight and Gov’t Reform, 

110th Cong. 23, 27 (2008) (statement of Paul A. Quander, Jr., Director, CSOSA).

8 The Local Role of the U.S. Parole Commission: Increasing Public Safety, 

Reducing Recidivism, and Using Alternatives to Re-incarceration in the District of 

Columbia: Hearing before the H. Subcomm. on Fed. Workforce, Postal Service, and 

D.C. of the Comm. on Oversight and Gov’t Reform, 111th Cong. 27, 30 (2009) 

(statement of Adrienne Poteat, Acting Director, CSOSA) (“2009 House Oversight 

Committee Hearing”).

9 2009 House Oversight Committee Hearing at 102.
55

sanctions.”10 Testimony directed the subcommittee’s attention to issues such as “the 

matter of the [Parole] Commission’s continued existence.”11 

Tellingly, my colleagues are willing to assume that Congress “was familiar 

with nondelegation principles operating in the federal courts,” ante at 23 n.8, but 

they persist in ignoring the foregoing evidence that Congress had been made well 

aware, in the specific CSOSA oversight context, of how CSOSA interpreted its 

intermediate sanctions responsibility before it went on to re-enact the statutory 

provision imposing that duty (not merely authority) on CSOSA.12

“Where an agency’s statutory construction has been fully brought to the 

attention of the public and the Congress, and the latter has not sought to alter that 

interpretation although it has amended the statute in other respects, then presumably 

the legislative intent has been correctly discerned.” N. Haven Bd. of Educ. v. Bell, 

456 U.S. 512, 535 (1982) (internal quotation marks omitted). That legal principle 

applies here with respect to CSOSA’s construction of its mandate under D.C. Code 

§ 24-133(b)(2)(F). That and the legislative history of section 24-133(b)(2)(F) show 

 10 2009 House Oversight Committee Hearing at 2 (Statement of Subcommittee 

Chair Stephen F. Lynch).

11 2009 House Oversight Committee Hearing at 24 (statement of Parole 

Commission Chairman Isaac Fulwood). 

12 The re-enactment can effectively be viewed as a ratification by Congress of 

CSOSA’s interpretation of its statutory mandate. See Young v. Tenn. Valley Auth., 

606 F.2d 143, 147 (6th Cir. 1979).
56

that Congress intended to authorize and did authorize CSOSA to operate a program 

of sanctions (such as the requirement to wear a GPS monitor) for a supervised 

releasee’s failure to comply with conditions of supervised release.

B. The administrative sanction regulations

Consistent with the foregoing statutory authority, Parole Commission 

regulations direct releasees supervised by CSOSA to comply with CSOSA-imposed 

sanctions. Specifically, 28 C.F.R. § 2.204(a)(6)(vi) (2023) states:

(vi) Comply with a graduated sanction. If you are 

supervised by CSOSA, you must comply with the 

sanction(s) imposed by the supervision officer and as 

established by an approved schedule of graduated 

sanctions. We may decide to begin revocation 

proceedings for you even if the supervision officer has 

earlier imposed a graduated sanction for your alleged 

violation of a release condition.

Thus, in effect, the Parole Commission has in effect adopted CSOSA’s schedule of 

graduated sanctions as a Parole Commission requirement. CSOSA’s own 

regulations explain that a supervised releasee “will be in violation of the conditions 

of [their] supervision” and “administrative sanctions” may be imposed “if [their] 

CSO has reason to believe that [they] are failing to abide by the general or specific 

conditions of release or [they] are engaging in criminal activity.” 28 C.F.R. 

§ 810.3(a) (2023). The CSOSA regulations list “[e]lectronic monitoring for a 
57

specified amount of time” as an administrative sanction “available to the CSO.” Id.

§ 810.3(b)(6).

Although my colleagues are willing to “assume for purposes of t[he majority] 

opinion” that CSOSA may have some authority to “administratively sanction,” ante

at 29 (brackets removed) (emphasis omitted), they conclude that “[CSOSA’s]

regulations may not reasonably authorize its officers to impose electronic monitoring 

in the form of GPS tracking on supervised releasees absent [on each occasion, I 

presume] the express authorization of the Parole Commission.” Ante at 44.

13 My 

colleagues do not, however, adequately explain why GPS monitoring should not be 

regarded as an administrative sanction. To be sure, courts have held in the several 

federal appellate cases cited in the majority opinion (ante at 21-23) and others that 

 13 I pause here to note that I concur with my colleagues that CSOSA has no 

authority to impose conditions of supervised release. As this court explained in Hunt 

v. United States, 109 A.3d 620 (D.C. 2014), “the statutory framework here is clear: 

[the Parole Commission] or the Superior Court imposes conditions on release and 

CSOSA monitors compliance with those conditions.” Id. at 623. We recognized 

that “if releasees ‘are failing to abide by the general or specific conditions of 

release,’” “CSOSA imposes administrative sanctions” that “are an alternative to 

requesting a hearing that ‘may result in . . . changes to the conditions of . . .

release.’” Id. (quoting 28 C.F.R. § 810.3 (a) (2014)). We recognized in Hunt that 

electronic monitoring imposed by CSOSA as a sanction is not a condition of release 

(violation of which could support a criminal charge under D.C. Code 

§ 22-1211(a)(1)). Id. But the fact that electronic monitoring can be ordered as a 

condition of release (a condition the Parole Commission “ordinarily imposes . . . on 

sex offenders,” 2009 House Oversight Committee Hearing at 24) does not mean that 

GPS monitoring for a specified period of time may not be imposed by CSOSA as an 

administrative sanction for violating conditions of release.
58

“any condition [of supervised release] that affects a significant liberty interest . . . 

must be imposed by the [entity to whose authority a releasee is subject].” United 

States v. Matta, 777 F.3d 116, 123 (2d Cir. 2015) (quoting United States v. Mike, 

632 F.3d 686, 696 (10th Cir. 2011)). But a common thread in those cases is that 

they discussed release conditions that substantially restricted an offender’s travel

and where he or she could be at particular times. See id. (citing a requirement that 

the offender participate in residential treatment); United States v. Fiume, 643 F. 

App’x 25, 28 (2d Cir. 2016) (noting that “[h]ome detention is a [] condition that is 

significantly more onerous than GPS monitoring” and citing U.S. Sentencing 

Guideline 5F1.2 specifying that home detention as a condition of probation or 

supervised release may be imposed “only as a substitute for imprisonment”); United 

States v. Esparza, 552 F.3d 1088, 1091 (9th Cir. 2009) (explaining that a probation 

officer may not make the decision to order inpatient treatment); United States v. 

Heath, 419 F.3d 1312, 1315 (11th Cir. 2005) (impermissible to delegate to the 

probation officer the decision whether the offender had to participate in a mental 

health program); United States v. Kent, 209 F.3d 1073, 1078-1079 (8th Cir. 2000) 

(improper delegation to probation officer to determine whether the defendant would 

undergo counseling). 

As to GPS monitoring as a condition of release, courts have recognized that 

when it is required for the entire supervision period and applies without exception,
59

without any determination particular to the offender, it “imposes a significant 

limitation on liberty.” Commonwealth v. Cory, 911 N.E.2d 187, 195 (Mass. 2009). 

But the rationales of these cases do not explain why relatively short-term GPS 

monitoring—such as the 90-day period of monitoring for which appellant’s CSO 

referred him, imposed only as a sanction for his violation of conditions of release set 

by the Parole Commission—is so significant a limitation on liberty that it may not 

be imposed as an administrative sanction. There can be no doubt that GPS 

monitoring “is intrusive,” i.e., “a serious intrusion on personal privacy,” United 

States v. Jackson, 214 A.3d 464, 476-77 (D.C. 2019), and that it constitutes a 

restriction on a releasee’s liberty. But, as we observed in Jackson, GPS tracking 

data is reviewed by CSOSA “solely to determine whether supervisees were present 

at crime scenes or prohibited locations, or were violating curfews,” a limited use that 

makes CSOSA’s GPS monitoring “far less of an intrusion on a supervisee’s privacy 

than, for example, the warrantless search of a private home sanctioned in Griffin.” 

Id. at 478. There are other (seemingly non-controversial) conditions of release for 

all releasees that impose more restrictions on the releasee’s movements, travel, and 

freedom of association (such as the requirement to “report to the supervision officer 

as that officer directs,” 28 C.F.R. § 2.204(a)(4)(i) (2023), and the prohibitions 

against “leav[ing] the district of supervision without the written permission of [the] 

supervision officer,” id. § 2.204(a)(5)(iv), and “associat[ing] with a person who has 
60

a criminal record without the permission of [the] supervision officer,” id.

§ 2.204(a)(5)(v)) than GPS monitoring does. By comparison, GPS monitoring, 

though it “somewhat curtails” a releasee’s activities and freedom of movement, 

Jackson, 214 A.3d at 477, appears to fit quite comfortably within the rubric of an 

“intermediate” sanction when imposed on a temporary basis and only as a sanction 

for non-compliance with a condition(s) of release. We need not decide whether all 

of CSOSA’s regulations are valid or describe sanctions than can be imposed by 

CSOSA without rising to the level of a special condition of release to conclude that 

temporary GPS monitoring as a sanction for non-compliance does not exceed 

CSOSA’s statutory authority.14

C. The majority’s interpretation of D.C. Code § 24-133(b)(2)(F).

I now turn to a textual analysis of why I believe the opinion for the court is 

wrong about the meaning of the pertinent statutory language. My colleagues in the 

majority suggest, ante at 26-27, that CSOSA’s statutory responsibility to “[d]evelop 

and operate intermediate sanctions . . . programs,” D.C. Code § 24-133(b)(2)(F), 

means only that CSOSA is to make sentencing options that Superior Court trial 

 14 I note that while CSOSA’s regulations list “[p]lacement in a residential 

sanctions facility . . . for a specified period of time,” 28 C.F.R. § 810.3(b)(8), as an 

administrative sanction “available to the CSO,” USPC regulations treat the 

requirement to reside in a community corrections center and the requirement to 

remain at home during hours when the releasee is not working or going to school as 

“special conditions of release.” Id. § 2.204(b)(2)(i), (iii).
61

judges might impose, just as the Truth in Sentencing Commission, through a separate 

provision of the Revitalization Act, was charged with making “recommendations [to 

the Superior Court] for determining the sentence to be imposed,” including 

“[w]hether to impose . . . intermediate sanctions in appropriate cases.”15 Ante at 26

(emphasis omitted) (quoting Balanced Budget Act, § 11212(f)(1) (codified as D.C. 

Code § 24-112(f)(1)). But the fact that the CSOSA Director is required to operate a 

program of intermediate sanctions for “sentenced offenders” indicates that the 

CSOSA task, which comes after the Superior Court has imposed a sentence, differs 

from the Sentencing Commission task (which, again, entails making 

recommendations as to “the sentence to be imposed”). Moreover, D.C. Code § 24-

 15 As support for their reasoning that the term “intermediate sanctions” must 

have the same meaning in both places where it was used in the Act, my colleagues 

cite Edwards v. United States, 583 A.2d 661, 664 (D.C. 1990) (acknowledging the 

“presumption that identical words used in the same or related legislation were 

intended to have the same meaning”). But the presumption described in Edwards is 

not inflexible. See Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 

433-34 (1932) (explaining that “the presumption is not rigid and readily yields 

whenever there is such variation in the connection in which the words are used as 

reasonably to warrant the conclusion that they were employed in different parts of 

the act with different intent”; observing that “[i]t is not unusual for the same word 

to be used with different meanings in the same act, and there is no rule of statutory 

construction which precludes the courts from giving to the word the meaning which 

the legislature intended it should have in each instance”). While the Truth in 

Sentencing Commission and CSOSA provisions of the Balanced Budget Act both 

refer to “intermediate sanctions,” so do Medicaid and Medicare+Choice provisions 

of the same omnibus legislation. See, e.g., § 1852(k)(2)(A)(iii), 111 Stat. 275, 298; 

§ 1857(g)(3), 11 Stat. 275, 324; § 4707(e)(1), 111 Stat. 489, 503. The meaning 

clearly is not the same in all those places.
62

133(b)(2)(F) mandates that CSOSA develop and operate both sanctions programs 

and incentives programs. The latter cannot reasonably be read as entailing making 

recommendations to the court that a releasee who has been compliant with his 

conditions of release should be given bus fare to a job interview or money for a GED 

test. To the contrary, providing such incentives is most reasonably understood as a 

matter for day-to-day CSO decision-making to be accomplished with the immediacy 

needed to respond to circumstances, not as a duty to recommend an incentive award 

to another decision-maker whose availability and ability to respond promptly is (at 

least) a tier removed. As this court observed in Jackson, “unanticipated 

circumstances may arise and justify CSOSA’s employment of [GPS monitoring] as 

an intermediate and hopefully temporary sanction.” 214 A.3d at 480. And as 

CSOSA has explained, “[a] critical factor in []supervision [of releasees] is the ability 

to introduce an accountability structure into the supervision process and to provide 

swift, certain, and consistent responses to non-compliant behavior” and to avoid the 

uncertain response time that may ensue after reporting a violation to the releasing 

authority. Community Supervision: Administrative Sanctions Schedule, 66 Fed. 

Reg. 48336, 48336 (Sept. 20, 2001). The statutory language coupling the CSOSA 

Director’s authority to develop and operate sanctions and incentives programs 

therefore is most reasonably understood as authority to effectuate both sanctions and 
63

incentives at the CSOSA level, not merely to recommend them to the court (or the 

Parole Commission). 

Contrary to my colleagues’ suggestion, this interpretation does not amount to 

an unlawful delegation by the Parole Commission of statutory responsibility with 

respect to D.C. offenders on supervised release. To be sure, as discussed above, the 

Parole Commission has directed in its regulations that CSOSA supervisees must 

“comply with the sanction(s) imposed by the supervision officer and as established

by an approved schedule of graduated sanctions.” 28 C.F.R. § 2.204(a)(6)(vi)

(2023). But both USPC regulations and CSOSA regulations acknowledge that 

CSOSA’s sanctions decisions remain subject to the Commission’s override or 

modification. Thus, recognizing CSOSA’s authority to impose GPS monitoring for 

a specified period of time pursuant to its administrative sanctions authority does not, 

as my colleagues suggest, “transgress on the Parole Commission’s adjudicatory 

role.” Ante, at 31.

16 Section § 2.204(a)(6)(vi) specifically announces USPC’s 

reservation of authority to “decide to begin revocation proceedings for [a releasee]

even if the [CSOSA] supervision officer has earlier imposed a graduated sanction 

 16 Regarding procedures that do constitute adjudications, both CSOSA and the 

Parole Commission described to the House oversight committee in 2009 that they 

had created “an alternative sanction option called the Reprimand Sanction Hearing,” 

a “last step” before a revocation hearing, which is conducted by a Parole 

Commission member with CSOSA staff present and a representative of the Public 

Defender Service present. 2009 House Oversight Committee Hearing at 21, 31-32.
64

for [the releasee’s] alleged violation of a release condition.”17 Similarly, CSOSA’s 

regulations specify that releasees “remain subject to further action by the releasing 

authority” and states as an example that “the USPC may override the imposition of 

any of the sanctions in paragraph (b) of this section[.]”18 Id. § 810.3(c). USPC’s 

regulations also provide that CSOs must submit reports and information concerning 

the enforcement of a releasee’s conditions of supervised release “as the [Parole 

Commission] may direct.” Id. § 2.207. Thus, USPC retains oversight of any decision 

by a CSOSA CSO to refer a release for GPS monitoring for a specified period of 

time.

D. The majority’s interpretation of D.C. Code § 24-133(d).

Like appellant’s brief on appeal, the majority opinion highlights D.C. Code 

§ 24-133(d), which states that CSOSA officers “shall have and exercise the same 

powers and authority as are granted by law to United States Probation and Pretrial 

Officers.” Reading section 24-133(d) as language of limitation, my colleagues

 17 In addition, the Parole Commission has reserved the right to “change or add 

to the conditions of release,” 28 C.F.R. § 2.204(c)(1) (2023), and it has set limits on 

a CSO’s authority to approve a releasee’s travel outside the D.C. metropolitan area, 

id. § 2.206(a).

18 Cf. United States v. Johnson, 48 F.3d 806, 809 (4th Cir. 1995) (“[I]n every 

delegation, the court must retain the right to review findings and to exercise ultimate 

authority[.]”). 
65

emphasize that federal probation and pretrial officers “are assigned only 

administrative and supervisory duties” and have “decisionmaking authority over 

certain minor details of supervised release.” Ante at 24 (emphasis added). However, 

section 24-133(d) should not be read as denoting that CSOSA CSOs shall have only 

“the same powers and authority as are granted by law to United States Probation and 

Pretrial Officers.”19 That is because section 24-133(d), must be harmonized with the 

mandate of section 24-133(b)(2)(F) that the CSOSA Director develop and operate 

an intermediate sanctions program.20 To read section 24-133(d) as nullifying section 

 19 I also note that per CSOSA’s Policy Statement 4008 on Global Positioning 

System (GPS) Tracking of Offenders, Supervisory CSOs “are responsible for 

reviewing CSO requests for GPS placement and then referring eligible offenders for 

GPS tracking”; while CSOs are responsible for identifying offenders to be placed on 

GPS monitoring, they must “get concurrence” from a Supervisory CSO. CSOSA, 

Policy Statement 4008: Global Positioning System (GPS) Tracking of Offenders 2, 

7 (2009), https://bit.ly/31nq4vN; https://perma.cc/2DWK-CPQB. This appears to 

be another reason why the limited power and authority of United States Probations 

Officers does not foreclose Supervisory CSO decisions to impose GPS monitoring 

as a sanction.

20 The Director’s “authority to delegate discretionary and quasi-judicial 

powers to agency subordinates [such as CSOs] is implied where the powers 

bestowed upon an agency head are impossible of personal execution.” Martin v. 

Neb. Dep’t of Corr. Servs., 671 N.W.2d 613, 619 (Neb. 2003) (internal quotation 

marks omitted) (rejecting the argument that the Director of the Department of 

Correctional Services could not delegate his authority to approve inmates’ forfeiture 

of good time credits). In any event, appellant has not questioned the authority of his 

CSO to make the sanctions decision upon delegation by the CSOSA Director, and

the record provides no basis for concluding that the CSO acted without a delegation 

of authority from the CSOSA Director in referring appellant for GPS monitoring.
66

24-133(b)(2)(F) is not a reasonable interpretation that harmonizes the overall 

statutory scheme.21 The Supreme Court and this court have not hesitated to 

harmonize seemingly conflicting statutory provisions by restricting the reach of 

some of the relevant language. See, e.g., Citizens Bank v. Strumpf, 516 U.S. 16, 20-

21 (1995); J.P. v. District of Columbia, 189 A.3d 212, 222 (D.C. 2018). In Citizens 

Bank, the Supreme Court narrowly interpreted the scope of 11 U.S.C. § 362(a)(7) 

(the Bankruptcy Code automatic stay provision) in order to preserve the right of a 

creditor to offset a debt provided for in a separate section of the Bankruptcy Code. 

516 U.S. at 17. The Court reasoned that “[i]t would be an odd construction of 

§ 362(a)(7) that required a creditor with a right of setoff to do immediately that 

which § 542(b) specifically excuses it from doing[.]” Id. at 20. In J.P., this court 

upheld the inpatient commitment of juvenile J.P. pursuant to D.C. Code 

§ 24-531.07(a)(2) notwithstanding the language of D.C. Code § 7-1231.14 that 

specifies, subject to a few exceptions that did not apply in J.P.’s case, that “no minor 

may be admitted for inpatient mental health services absent the consent of a parent 

or legal guardian.” D.C. Code § 7-1231.14(a); see J.P., 189 A.3d at 218. We 

reasoned, inter alia, that “§ 7-1231.14(a)’s parental-consent requirement does not 

appear to have been directed at criminal proceedings.” J.P., 189 A.3d at 218.

 21 See In re T.L.J., 413 A.2d 154, 158 (D.C. 1980) (noting the “well-accepted 

tenet of statutory construction that, whenever possible, a statute should be 

interpreted as a harmonious whole” (internal quotation marks omitted)).
67

Similarly here, it would be an odd construction of D.C. Code § 24-133(d) to 

read the section as canceling out the role of CSOSA CSOs in carrying out the 

agency’s duty to operate a program of intermediate sanctions, when 

section 24-133(b)(2)(F) imposes on the CSOSA Director the specific duty to develop 

and operate such a program (and it is fairly implied that the Director may do so 

through CSOSA staff). Nothing in the text of the statute or its legislative history 

suggests that section 24-133(d) was directed at limiting CSOs’ role with respect to 

the operation of a program of intermediate sanctions, a duty Congress specifically 

imposed on CSOSA in the same legislation in which it provided that CSOs would 

have the powers and authority of federal probation officers. Further, under the 

general principle of statutory construction that “if two provisions conflict, . . . the 

later supersedes the earlier,”22 even if that limiting interpretation of 

section 24-133(d) were otherwise reasonable, the fact that the sanctions language of 

section 24-133(b)(2)(F) was re-enacted in 2016, a date later than the 1997 enactment 

of section 24-133(d), dictates that the duty section 24-133(b)(2)(F) imposed on the 

CSOSA Director superseded any limit on the powers of CSOs that section 24-133(d) 

could otherwise be read to impose.

 22 Bridgforth v. Gateway Georgetown Condo., Inc., 214 A.3d 971, 975 (D.C. 

2019). 
68

I note in addition that with respect to other language in the D.C. Code similar 

to the “shall have and exercise the same powers and authority as” clause of D.C. 

Code § 24-133(d), a limiting interpretation such as appellant urges and my 

colleagues have adopted plainly would not be correct. D.C. Code § 5-201 provides 

that the United States Park Police “shall have and perform the same powers and 

duties as the Metropolitan Police of the District.” We have interpreted this language 

to mean that the Park Police, like the MPD, have jurisdiction to make arrests 

“throughout the District of Columbia,” Richardson v. United States, 520 A.2d 692, 

694 (D.C. 1987) (Park Police arrest authority extends beyond federal parks and 

enclaves). But it would be incorrect to read section 5-201 as limiting the authority 

of the Park Police to locations in the District of Columbia, because under D.C. Code 

§ 5-206, Park Police officers “shall have the power and authority to make arrests” 

“[o]n and within roads, parks, parkways, and other federal reservations in the 

environs of the District of Columbia” (emphasis added). The term “environs of the 

District of Columbia” is “defined as embracing Arlington, Fairfax, Loudoun, Prince 

William, and Stafford Counties and the City of Alexandria in Virginia, and Prince 

George’s, Charles, Anne Arundel, and Montgomery Counties in Maryland.” D.C. 

Code § 5-208.23 Thus, the reference in section 5-201 to the Park Police having the 

 23 By contrast, as we recognized in District of Columbia v. Coleman, 667 A.2d 

811, 818 n.11 (D.C. 1995), an MPD officer would have “had no police powers at the 

time of [an] incident” in Maryland.
69

“same powers and duties” as the MPD is not properly read as limiting the power and 

duties of Park Police officers. Here likewise, the language conferring on CSOSA 

CSOs the same power and duties as U.S. Probation officers should not be read to 

exclude from CSOs’ authority a broader scope of authority that is specific to them 

as the staff of the CSOSA Director, who is mandated by D.C. Code 

§ 24-133(b)(2)(F) to operate a program of intermediate sanctions.

E. The fact that GPS monitoring is a search.

The additional rationale on which the majority opinion rests its conclusion is 

that CSOSA’s electronic monitoring regulation is ultra vires is that (1) as this court 

recognized in Jackson, GPS monitoring is a search and (2) Parole Commission 

policy is that probation/supervision officers have no authority to order warrantless 

searches of releasees. Ante at 37-38.

Our opinion in Jackson acknowledged that “when the government ‘attaches a 

device to a person’s body, without consent, for the purpose of tracking that 

individual’s movements,’ it conducts a search” for purposes of the Fourth 

Amendment protection against unreasonable searches and seizures. 214 A.3d at 472

(quoting Grady v. North Carolina, 575 U.S. 306, 309 (2015)). We explained that 

“[w]e determine whether a search is reasonable by assessing, on the one hand, the 

degree to which it intrudes upon an individual’s reasonable expectation of privacy 
70

and, on the other, the degree to which it is needed for the promotion of legitimate 

governmental interests.” Id. (brackets and internal quotation marks omitted).

We held in Jackson that GPS monitoring on Mr. Jackson, a probationer,

without judicial authorization was justified as a reasonable intrusion on 

Mr. Jackson’s privacy to meet “special needs,” id. at 471, and was constitutional 

because “his reasonable expectation of privacy as a convicted offender on probation 

was diminished and was outweighed by the strong governmental interests in 

effective probation supervision to deter and detect further criminal activity on his 

part and encourage his rehabilitation.” Id. at 467. We referred to CSOSA’s 

regulations as “the counterpart to the regulation at issue in Griffin [v. Wisconsin, 483 

U.S. 868 (1987)].” Id. at 475. And in Atchison v. United States, 257 A.3d 524 (D.C. 

2021), finding no meaningful distinction between probation and supervised release, 

we held that the reasoning of Jackson governs in supervised release cases as well. 

Id. at 531. 

This court’s recognition that a releasee under supervision “must expect 

considerable supervisory intrusion on his privacy,” Jackson, 214 A.3d at 478, 

undermines my colleagues’ conclusion that temporary GPS monitoring as a sanction 

could not lawfully be imposed on appellant as an administrative sanction. “Like the 

Supreme Court [reasoned] in Griffin,” and like this court observed in Jackson, “little 

if anything would be gained in most cases by setting up [the Parole Commission]
71

rather than the [community supervision] officer as the judge of how close a 

supervision the [releasee] requires from time to time.” Id. at 480 (internal quotation 

marks omitted). Further, after the carjacking to which appellant pled guilty, “[i]t 

cannot plausibly be maintained that the intrusion of GPS tracking was 

disproportionate to the threat [appellant] posed to the safety of the community.” Id.

at 479.

What is left of my colleagues’ search rationale for overturning CSOSA’s 

authority to impose GPS monitoring is their reliance on a pre-Grady Parole 

Commission Rules & Procedures Manual that states in its section 2.204-18(a) that 

“[s]earches by Supervision Officers are disfavored.” Ante at 33-35. Nothing in the 

record tells us whether this June 30, 2010, document, accessible on the internet but 

not cited by the trial court, was the USPC policy at the time appellant’s GPS device 

was put on, whether it reflects USPC policy in the wake of the Supreme Court’s

2015 opinion in Grady, or whether USPC has reconsidered its policy or modified its 

guidance in recognition that GPS monitoring constitutes a search.24 What can be 

said is that the further discussion of the issue in the same section of the Rules & 

 24 It is clear that at least prior to Grady, the Parole Commission generally 

allowed CSOSA “to decide on the appropriate methods and technologies employed 

to monitor a releasee’s compliance with release conditions,” including whether to 

conduct monitoring through electronic tracking devices such as GPS tracking 

devices. Paroling, Recommitting, and Supervising Federal Prisoners: Prisoners 

Serving Sentencing Under the United States and District of Columbia Codes, 68 Fed. 

Reg. 41696, 41699 (July 15, 2003).
72

Procedures Manual seems to include within its scope only searches that present 

issues such as whether CSOs are “authorized to restrain third parties during a search” 

(according to the 2010 Manual, they are not), whether “it is reasonably foreseeable 

that a third party or the releasee himself may present a danger,” what should be done 

with seized items, and whether the contemplated scope of the search will result in 

other than minor damage to the property to be searched. Id. § 2.204-18(b)(3). It is 

also noteworthy that the Rules & Procedures Manual lists “curfew with electronic 

monitoring” as one of the graduated sanctions that CSOSA may impose, without any 

indication that electronic monitoring is subject to the search policy described in 

section 2.204-18(a). Id. § 2.204-21. Accordingly, the record does not support a 

conclusion that CSOSA’s imposition of temporary GPS monitoring as a sanction for 

non-compliance is contrary to the search policy of the Parole Commission.

F. Appellant’s arguments are properly subject to plain-error review.

The foregoing point, about an argument not developed in the trial court, brings 

me to my final argument in dissent, which is that, for the most part, appellant’s 

arguments in this appeal should be subject to review only for plain error. That is 

because, before the Superior Court, appellant never argued that CSOSA’s imposition 

of GPS monitoring was statutorily invalid because it falls outside the scope of 

CSOSA’s duty described in D.C. Code § 24-133(b)(2)(F) (the mandate to “develop 

and operate intermediate sanctions programs”) and is contrary to section 24-133(d) 
73

(stating that CSOs shall have the power and authority of United States probation 

officers).

In his opening brief in support of his motion to suppress, appellant argued that 

CSOSA’s requiring him to wear a GPS device without approval of a judicial officer 

was a Fourth Amendment violation. At the suppression hearing, the trial court (the 

Honorable Ronna Beck) sua sponte requested supplemental briefing from the parties 

on “the authority of CSOSA to require GPS monitoring.” Judge Beck explained that 

she was aware that “the Parole Commission has the authority under [the D.C.] Code 

to exercise the authority of the [c]ourt” over supervised releasees and that CSOs 

have “the same authority as probation officers and pretrial release officers under the 

U.S. Code.” Understanding that “CSOSA is the one here that [] imposed the GPS 

monitoring,” Judge Beck requested additional briefing on whether CSOSA’s power 

to impose GPS tracking is “authority given by statute, whether it’s authority given 

by the Parole Commission, or whether it’s inherent authority.” The court asked 

whether CSOSA “can [] just do that?” The court’s “focus” was “what entitles 

CSOSA to impose the GPS monitoring condition?” 

In its supplemental brief, the government told the court that CSOSA had “the 

legal authority to place [appellant] on GPS monitoring” and was authorized “to 

impose it as an ‘intermediate sanction’ to ‘encourage compliance with release 

conditions.’” As support, the government cited D.C. Code § 24-133(b)(2)(F) and 
74

CSOSA’s regulations regarding administrative sanctions (28 C.F.R. § 810.3 (2014)), 

as well as this court’s decision in Hunt. The court’s pointed questions and the 

government’s arguments in its supplemental brief should have prompted appellant 

to raise in his supplemental brief the arguments he now raises: that 28 C.F.R. 

§ 810.3(b) is invalid as exceeding CSOSA’s statutory authority under 

§ 24-133(b)(2)(F) because that provision merely requires CSOSA to develop 

sentencing recommendations and implement sentencing orders; and that D.C. Code 

§ 24-133(d) limits the power and authority of CSOSA supervision officers “to the 

degree warranted by the conditions specified by the sentencing court,” 18 U.S.C. 

§ 3601, or set by the Parole Commission as appellant’s particular conditions of 

release. These were precisely the types of arguments the court’s request for 

supplemental briefing invited. But appellant did not present them in his response to 

the court’s questions or to the government’s submission. We should hold that 

appellant forfeited these arguments by his failure to raise them in the trial court. 

This court’s opinion in Nesbeth v. United States, 870 A.2d 1193 (D.C. 2005), 

is instructive. Defendant Nesbeth, who had been convicted of marijuana possession, 

argued on appeal that his conviction violated the Religious Freedom Restoration Act 

(“RFRA”). See id. at 1194. We reviewed the claim only for plain error, agreeing 

with the government that Nesbeth had never adequately presented the statutory claim 

to the trial judge. Id. at 1196. We noted that in the trial court, Nesbeth had argued 
75

that his use of marijuana “was essential to the free exercise of his religion, his right 

under the First Amendment.” Id. (internal brackets and quotation marks omitted). 

Particularly analogous to the situation in the instant case, “[w]hen the judge asked 

him for case law from this jurisdiction or the Supreme Court supporting the religious 

defense, he again asserted ‘the First Amendment.’” Id. Then, “[a]s the trial 

progressed, the judge twice informed him of binding decisional law rejecting his 

constitutional free exercise claim.” Id. Still, Nesbeth “never once mentioned the 

RFRA to the trial judge.” Id. We noted that “[o]n neither occasion did 

[Nesbeth] attempt to clarify that instead he was making a statutory argument[.]” Id. 

Citing our regularly applied rule that “‘[p]oints not asserted with sufficient precision 

to indicate distinctly the party's thesis will normally be spurned on appeal,’” id. at 

1197 (quoting Baxter v. United States, 640 A.2d 714, 717 (D.C. 1994), we said that 

Nesbeth’s “bare citation to a decision [] involving an RFRA defense, while he 

asserted explicitly only a claim grounded in the First Amendment and never 

attempted to tell the judge the difference, did not raise the statutory claim with the 

distinctness necessary to preserve it.” Id.

Here similarly, Judge Beck’s specific request to the parties to address whether 

CSOSA’s power to impose GPS tracking was “authority given by statute,” followed 

by appellant’s failure to address with specificity the statutory provisions 

(sections 24-133(b)(2)(F) and (d)) or his interpretations thereof that he now argues 
76

answer the question, should result in review of these arguments only for plain error. 

It was not enough for appellant to assert that CSOSA’s regulation was 

“statutorily . . . impermissible” to the extent it allowed CSOSA to add new 

conditions of release. The trial court was not “demonstrably . . . aware of the 

potential [statutory-construction] error” appellant now argues, Graves v. United 

States, 245 A.3d 963, 969 (D.C. 2021), and nothing in the “record confirms that the 

judge was well aware of the legal issue[s]” appellant has advanced on appeal, such 

that it is “perfectly fair to view the judge as being on notice” of the arguments. 

Tinsley v. United States, 868 A.2d 867, 883 (D.C. 2005 (Glickman, J., dissenting) 

(noting that the trial judge had “acknowledged that ‘extreme circumstances’ had to 

exist to justify any exclusion” of the public from the courtroom). This also is not a 

case where “the trial judge specifically articulated the essential legal principle,” 

Tindle v. United States, 778 A.2d 1077, 1082 (D.C. 2001); or where the trial court’s 

comments gave appellant “every reason to think [that the arguments he now has 

raised for the first time on appeal] would be pointless,” Graves, 245 A.3d at 970; or 

in which the new arguments presented on appeal have been “generated by a change 

in the law, and were not available” to appellant during the trial court proceedings, 

Stancil v. United States, 866 A.2d 799, 805 (D.C. 2005).25 Appellant’s new 

 25 The majority opinion seems to reason that because in the trial court the 

government did not rely on the special-needs-search doctrine as a justification for 
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arguments were “not even obscurely hinted at” in his supplemental briefing, and the 

Superior Court judge “quite excusably failed to grasp [them].” United States v. 

Franks, 463 F. App’x 895, 896 n.1 (11th Cir. 2012) (internal quotation marks 

omitted).26 This case therefore calls for plain-error review of appellant’s claim that 

 

CSOSA’s GPS monitoring but now embraces that rationale, appellant, too, should 

be permitted to rely without limitation on the new interpretations of sections 

24-133(b)(2)(F) and 24-133(d) he now advances. Ante at 6-7, 15-18. But the 

situations are not analogous. Prior to this court’s opinions in Jackson and Atchison, 

the government acknowledged that “CSOSA’s placement of the defendant on GPS 

monitoring was not a ‘special needs’ search ‘for a purpose other than law 

enforcement.’” This court subsequently held in Jackson, however, that CSOSA’s 

imposition of GPS monitoring on a probationer “was a constitutional ‘special needs’

search,” 214 A.3d at 467, and then in Atchison extended that holding to supervised 

release, 257 A.3d at 530, notwithstanding that law enforcement was one purpose of 

the monitoring. By contrast, there has been no clarification of the law such that 

appellant should now be permitted to make arguments that were available to him all 

along, but that he forfeited when the trial court specifically asked for briefing on 

whether—and why or why not—CSOSA had authority to impose GPS monitoring. 

26 And, as in Tinsley, “there is a potentially significant gap in the record”—

here, regarding what USPC policy was regarding temporary GPS monitoring as a 

CSOSA-imposed sanction at the time the GPS device was placed on appellant, “a 

consequence, perhaps, of the fact that no one focused on the question” during the 

Superior Court proceedings. Tinsley, 868 A.2d at 884 (concluding that “immediate 

reversal of Tinsley’s convictions would be premature because the government 

should be given an opportunity to prove, if it could, that the spectators ejected from 

Tinsley’s trial actually were allowed to return). Here similarly, if USPC’s policy 

about searches by probation officers is dispositive of whether CSOSA’s unilateral 

imposition of GPS monitoring as a sanction for non-compliance with a releasee’s 

conditions of release is lawful, a remand for the government to prove what that 

USPC policy is would seem to be required.
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he is entitled to reversal of his conviction on the statutory-interpretation grounds he 

now urges.

Appellant cannot show plain error as to his argument that CSOSA GPS 

monitoring of appellant as a sanction for violating his conditions of release exceeded 

CSOSA’s statutory authority under D.C. Code § 24-133(b)(2)(F). As discussed 

above, the 114th Congress read section 24-133(b)(2)(F) as enacted by the 105th 

Congress through the Balanced Budget Act of 1997 as granting CSOSA “specific 

statutory authority to punish sentenced offenders.” S. Rep. No. 114-110, at 2 (2015). 

This “expressed understanding . . . is surely evidence that it is fairly possible to read 

the provision that way” (internal quotation marks omitted), Almendarez-Torres v. 

United States, 523 U.S. 224, 270 (1998) (Scalia, J., dissenting)—meaning that it is 

far from obvious that appellant’s interpretation (that section 24-133(b)(2)(F) merely 

requires CSOSA to develop sentencing options for courts and implement court 

orders) is correct. For the reasons discussed above, it is also far from obvious that 

appellant’s interpretation of D.C. Code § 24-133(d)—that CSOSA CSOs have only 

the authority of U.S. probation officers—is correct. Thus, even if arguendo all of 

the points I have discussed above do not clearly establish that CSOSA may lawfully 

impose temporary GPS monitoring as a sanction for non-compliance with a 

supervised releasee’s conditions of release, the Superior Court did not plainly err in 

denying appellant’s motion to suppress.
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For all the foregoing reasons, I respectfully dissent from the judgment 

reversing the Superior Court’s denial of appellant’s motion to suppress.